No.

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

IN THE

Supreme Court of the United States ————

BANK MELLI,

Petitioner, v.

MICHAEL BENNETT, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JEFFREY A. LAMKEN

Counsel of Record ROBERT K. KRY MICHELLE J. PARTHUM MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Ave., N.W. Washington, D.C. 20037 (202) 556-2000 jlamken@mololamken.com

Counsel for Petitioner

(i)

QUESTIONS PRESENTED In First National City Bank v. Banco Para El Comer-

cio Exterior de Cuba, 462 U.S. 611 (1983) (“Bancec”), this Court held that “government instrumentalities estab-lished as juridical entities distinct and independent from their sovereign should normally be treated as such.” Id. at 626-627. Section 1610(g) of the Foreign Sovereign Immunities Act provides that, for terrorism judgments, “property of a foreign state” and “property of an agency or instrumentality of such a state” are subject to “exe-cution * * * as provided in this section, regardless of ” five factors associated with Bancec. 28 U.S.C. § 1610(g) (emphasis added). The Terrorism Risk Insurance Act (“TRIA”) provides that “blocked assets of [a] terrorist party” are subject to execution to satisfy terrorism judg-ments. 28 U.S.C. § 1610 note §201(a). The questions presented are:

1. Whether § 1610(g) establishes a freestanding ex-ception to sovereign immunity, as the Ninth Circuit held below, or instead merely supersedes Bancec’s presump-tion of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in § 1610, as the Seventh Circuit has held and the United States has repeatedly urged.

2. Whether a court should apply federal or state law to determine whether assets constitute “property of ” or “assets of ” the sovereign under TRIA and §1610(g), and whether those provisions require that the sovereign own the property in question, as the D.C. Circuit has held and the United States has repeatedly urged, contrary to the decision below.

ii

PARTIES TO THE PROCEEDINGS BELOW Petitioner Bank Melli was a third-party defendant in

the district court and appellant in the court of appeals.

Respondents Michael Bennett and Linda Bennett, in-dividually and as co-administrators of the Estate of Mar-la Ann Bennett, were plaintiffs in the district court and appellees in the court of appeals.

Respondents Carlos Acosta, Maria Acosta, Irving Franklin, Estate of Irma Franklin, Libby Kahane, Es-tate of Sonya Kahane, Cipporah Kaplan, Tova Ettinger, Baruch Kahane, Ethel Griffin as administrator of Bin-yamin Kahane’s Estate, Rabbi Norman Kahane, and Es-tate of Meir Kahane were third-party defendants and counterclaimants in the district court and appellees in the court of appeals.

Respondents Steven Greenbaum, Alan Hayman, Shir-lee Hayman, and Estate of Judith Greenbaum were third-party defendants and counterclaimants in the dis-trict court and appellees in the court of appeals.

Respondents Estate of Michael Heiser, Gary Heiser, Francis Heiser, Estate of Leland Timothy Haun, Ibis S. Haun, Milagritos Perez-Dalis, Senator Haun, Estate of Justin R. Wood, Richard W. Wood, Kathleen M. Wood, Shawn M. Wood, Estate of Earl F. Cartrette, Jr., Denise M. Eichstaedt, Anthony W. Cartrette, Lewis W. Car-trette, Estate of Brian McVeigh, Sandra M. Wetmore, James V. Wetmore, Estate of Millard D. Campbell, Ma-rie R. Campbell, Bessie A. Campbell, Estate of Kevin J. Johnson, Shyrl L. Johnson, Che G. Colson, Kevin John-son, Nicholas A. Johnson, Laura E. Johnson, Bruce Johnson, Estate of Joseph E. Rimkus, Bridget Brooks, James R. Rimkus, Anne M. Rimkus, Estate of Brent E. Marthaler, Katie L. Marthaler, Sharon Marthaler, Her-

iii

man C. Marthaler, Matthew Marthaler, Kirk Marthaler, Estate of Thanh Van Nguyen, Christopher R. Nguyen, Estate of Joshua E. Woody, Dawn Woody, Bernadine R. Beekman, George M. Beekman, Tracy M. Smith, Jonica L. Woody, Timothy Woody, Estate of Peter J. Morgera, Michael Morgera, Thomas Morgera, Estate of Kendall Kitson, Jr., Nancy R. Kitson, Kendall K. Kitson, Steven K. Kitson, Nancy A. Kitson, Estate of Christopher Ad-ams, Catherine Adams, John E. Adams, Patrick D. Ad-ams, Michael T. Adams, Daniel Adams, Mary Young, Elizabeth Wolf, William Adams, Estate of Christopher Lester, Cecil H. Lester, Judy Lester, Cecil H. Lester, Jr., Jessica F. Lester, Estate of Jeremy A. Taylor, Law-rence E. Taylor, Vickie L. Taylor, Starlina D. Taylor, Es-tate of Patrick P. Fennig, Thadeus C. Fennig, Catherine Fennig, Paul D. Fennig, and Mark Fennig were third-party defendants and counterclaimants in the district court and appellees in the court of appeals.

Respondents Visa Inc. and Franklin Resources, Inc. were defendants and third-party plaintiffs in the district court and appellees in the court of appeals.

The United States was a third-party defendant in the district court.

The Islamic Republic of Iran and the Iranian Ministry of Information and Security were defendants in the dis-trict court.

(v)

TABLE OF CONTENTS

Page Opinions Below ............................................................. 1 Statement of Jurisdiction ........................................... 1 Statutory Provisions Involved ................................... 2 Preliminary Statement ............................................... 2 Statement ...................................................................... 3

I. Statutory Framework ..................................... 3 A. The Foreign Sovereign Immunities

Act ................................................................ 3 B. The Terrorism Amendments to the

FSIA ............................................................ 5 II. Proceedings Below .......................................... 9

A. Proceedings in the District Court ........... 9 B. The Court of Appeals’ Decisions ............. 10

Reasons for Granting the Petition ............................ 16 I. The Ninth Circuit’s Holding That

§ 1610(g) Is a Freestanding Immunity Exception Warrants Review .......................... 18 A. The Ninth Circuit’s Decision

Conflicts with the Seventh Circuit’s Decision in Rubin ...................................... 18

B. The Ninth Circuit’s Decision Is Incorrect ..................................................... 21

II. The Ninth Circuit’s Interpretation of the Ownership Requirement Warrants Review ............................................................... 23 A. The Ninth Circuit’s Decision

Conflicts with the D.C. Circuit’s Decision in Heiser ..................................... 24

vi

TABLE OF CONTENTS—Continued Page

B. The Ninth Circuit’s Decision Is Incorrect ..................................................... 27

III. The Questions Presented Are Important .... 28 A. The Ninth Circuit Rejected the

United States’ Position on Issues with Important Foreign Relations Implications ................................................ 28

B. The Ninth Circuit’s Erroneous Interpretation of § 1610(g) Is a Substantial Departure from Traditional Immunity Principles............. 30

C. The Ninth Circuit’s Ruling on the Ownership Issue Presents Significant Practical Problems ................ 32

Conclusion ..................................................................... 33 Appendix A – Order and Amended Opinion

of the Court of Appeals (June 14, 2016) ............... 1a Appendix B – Order and Amended Opinion

of the Court of Appeals (February 22, 2016) ...... 35a Appendix C – Opinion of the Court of Appeals

(August 26, 2015) ..................................................... 67a Appendix D – Order of the District Court

Denying Motion to Dismiss (February 28, 2013) ................................................ 81a

Appendix E – Order of the Court of Appeals Staying the Mandate (July 5, 2016) .................... 105a

Appendix F – Relevant Statutory Provisions ........ 107a

vii

TABLE OF AUTHORITIES

Page(s)

CASES Bank Markazi v. Peterson,

135 S. Ct. 1753 (2015) ......................................... 30 Bank Melli Iran N.Y. Representative Office

v. Weinstein, 131 S. Ct. 3012 (2011) ................ 30 Bd. of Trs. of Leland Stanford Junior

Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011) ........................................ 24, 27

Calderon-Cardona v. Bank of N.Y. Mellon, 770 F.3d 993 (2d Cir. 2014) ....... 25, 26, 33

Christopher v. Harbury, 536 U.S. 403 (2002) .................................................................... 30

First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) ....................................... passim

Flatow v. Islamic Republic of Iran, 308 F.3d 1065 (9th Cir. 2002) ............................ 5, 8

Gates v. Syrian Arab Republic, 755 F.3d 568 (7th Cir. 2014) ......................... 13, 33

Hausler v. JP Morgan Chase Bank, N.A., 770 F.3d 207 (2d Cir. 2014) .......................... 25, 33

Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013) ..................... passim

Kirschenbaum v. 650 Fifth Ave., — F.3d —, 2016 WL 3916001 (2d Cir. July 20, 2016) ........................................ 21

Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) ............................ 27

Peterson v. Islamic Republic of Iran, 758 F.3d 185 (2d Cir. 2014) ............................... 33

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Phillips v. Wash. Legal Found., 524 U.S. 156 (1998) ............................................. 27

Poe v. Seaborn, 282 U.S. 101 (1930) ..................... 27 Republic of Austria v. Altmann,

541 U.S. 677 (2004) ............................................. 29 Rodriguez v. United States, 480 U.S. 522

(1987) .................................................................... 23 Rubin v. Islamic Republic of Iran:

— F.3d —, 2016 WL 3903409 (7th Cir. July 19, 2016) ........................... passim

132 S. Ct. 1619 (2012) ......................................... 30 Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) ........................................... 3, 31 Weinstein v. Islamic Republic of Iran,

— F.3d —, 2016 WL 4087940 (D.C. Cir. Aug. 2, 2016) ..................................... 21

Wyatt v. Syrian Arab Republic, 800 F.3d 331 (7th Cir. 2015) .............................. 13

STATUTES AND RULES Foreign Sovereign Immunities Act

of 1976, Pub. L. No. 94-583, 90 Stat. 2891 .................................................. passim

28 U.S.C. § 1602 ............................................. 31 28 U.S.C. § 1604 ............................................. 3 28 U.S.C. § 1605 ............................................. 3 28 U.S.C. § 1605(a)(2) .................................... 3 28 U.S.C. § 1605(a)(7) ................................. 5, 6, 7 28 U.S.C. § 1605A .......................................... 7 28 U.S.C. § 1605A(a) ...................................... 5 28 U.S.C. § 1609 ............................................. 4 28 U.S.C. § 1610 ............................................. 4

ix

TABLE OF AUTHORITIES—Continued

Page(s)

28 U.S.C. § 1610(a) ..................................... 4, 31 28 U.S.C. § 1610(a)(2) .................................... 4 28 U.S.C. § 1610(a)(7) .............................. 5, 6, 19 28 U.S.C. § 1610(b) ..................................... 4, 31 28 U.S.C. § 1610(b)(3) ............................ 6, 14, 19 28 U.S.C. § 1610(f ) ................................... passim 28 U.S.C. § 1610(f )(1) ............................ 6, 15, 22 28 U.S.C. § 1610(f )(1)(A) .............................. 6 28 U.S.C. § 1610(f )(2) ............................ 6, 15, 22 28 U.S.C. § 1610(f )(2)(A) .............................. 6 28 U.S.C. § 1610(f )(3) ............................ 7, 15, 22 28 U.S.C. § 1610(g) .................................. passim 28 U.S.C. § 1610(g)(1) .............................. passim

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241 .......... 5

Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, § 117, 112 Stat. 2681, 2681-491 (1998) ......................... 6

§ 117(d), 112 Stat. at 2681-492 ..................... 6 Victims of Trafficking and Violence

Protection Act of 2000, Pub. L. No. 106-386, § 2002, 114 Stat. 1464, 1541 ........ 7

§ 2002(f )(1)(B), 114 Stat. at 1543 ................. 7 § 2002(f )(2), 114 Stat. at 1543 ....................... 7

Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, § 201, 116 Stat. 2322, 2337 ...................................... passim

28 U.S.C. § 1610 note § 201(a) ................ passim

x

TABLE OF AUTHORITIES—Continued

Page(s)

National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338 ....................................... 7

28 U.S.C. § 1254(1) .................................................. 1 Fed. R. Civ. P. 19 .................................................... 10

TREATY PROVISIONS Treaty of Amity, Economic Relations,

and Consular Rights, U.S.-Iran, Aug. 15, 1955, 8 U.S.T. 899 ............................... 30

Art. III, 8 U.S.T. at 902 ................................ 30 Art. IV, 8 U.S.T. at 902 ................................. 30

United Nations Convention on Jurisdictional Immunities of States and Their Property, G.A. Res. 59/38, art. 19(c), U.N. Doc. A/RES/59/38 (Dec. 2, 2004) ....................................................... 31

LEGISLATIVE MATERIALS H.R. Rep. No. 94-1487 (1976) .......................... 3, 4, 31

EXECUTIVE MATERIALS 63 Fed. Reg. 59,201 (Oct. 21, 1998) ....................... 7 65 Fed. Reg. 66,483 (Oct. 28, 2000) ....................... 7 U.S. Br. in Calderon-Cardona v.

Bank of N.Y. Mellon, No. 12-75 (2d Cir. filed Sept. 21, 2012) .............................. 29

U.S. Br. in Hegna v. Islamic Republic of Iran, No. 11-1582 (2d Cir. filed Nov. 4, 2011) ........................................................ 28

xi

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Br. in Heiser v. Islamic Republic of Iran, No. 12-7101 (D.C. Cir. filed Mar. 11, 2013) ..................................................... 29

U.S. Br. in JPMorgan Chase Bank, N.A. v. Hausler, No. 12-1264 (2d Cir. filed July 9, 2012) ........................................................ 29

U.S. Br. in Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Frym, No. 13-57182 (9th Cir. filed July 3, 2014) ................................ 28

U.S. Br. in Rubin v. Islamic Republic of Iran, No. 11-2144 (1st Cir. filed June 7, 2012) ....................................................... 29

U.S. Br. in Rubin v. Islamic Republic of Iran, No. 14-1935 (7th Cir. filed Nov. 3, 2014) ........................................................ 28

U.S. Br. in Villoldo v. Ruz, No. 15-1808 (1st Cir. filed Dec. 24, 2015) .............................. 29

U.S. Br. in Weinstein v. Islamic Republic of Iran, No. 14-7193 (D.C. Cir. filed Dec. 29, 2015) ...................................................... 29

OTHER AUTHORITIES S. Shapiro et al., Supreme Court Practice

(10th ed. 2013) .................................................. 30, 32

IN THE

Supreme Court of the United States ————

BANK MELLI, Petitioner,

v.

MICHAEL BENNETT, et al., Respondents.

————

On Petition for a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit ————

PETITION FOR A WRIT OF CERTIORARI ————

Bank Melli respectfully petitions for a writ of certio-rari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW The court of appeals’ opinion (App., infra, 1a-34a) is

reported at 825 F.3d 949 (9th Cir. 2016). The court of ap-peals’ prior, superseded opinions (App., infra, 35a-66a and 67a-80a) are reported at 817 F.3d 1131 (9th Cir. 2016) and 799 F.3d 1281 (9th Cir. 2015), respectively. The dis-trict court’s opinion (App., infra, 81a-104a) is reported at 927 F. Supp. 2d 833 (N.D. Cal. 2013).

STATEMENT OF JURISDICTION The court of appeals entered judgment on June 14,

2016. App., infra, 1a-34a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

2

STATUTORY PROVISIONS INVOLVED Relevant provisions of the Foreign Sovereign Immuni-

ties Act of 1976, 28 U.S.C. §§ 1602 et seq.; and the Terror-ism Risk Insurance Act of 2002, 28 U.S.C. § 1610 note; are set forth in the Appendix (App., infra, 107a-132a).

PRELIMINARY STATEMENT The Ninth Circuit’s decision in this case construes

§ 1610(g) of the Foreign Sovereign Immunities Act as a freestanding exception to sovereign immunity. Under that provision, the Ninth Circuit ruled, plaintiffs can exe-cute terrorism judgments against sovereign property whether or not the property falls within any of the Act’s traditional exceptions to immunity. A month after the Ninth Circuit issued its decision, the Seventh Circuit ex-pressly “disagree[d] with the Ninth Circuit’s interpreta-tion of subsection (g),” describing it as a “highly strained interpretation” that “makes no sense.” Rubin v. Islamic Republic of Iran, — F.3d —, 2016 WL 3903409, at *12-13 (7th Cir. July 19, 2016). The United States likewise “dis-agrees with [the Ninth Circuit’s] interpretation,” as the Ninth Circuit acknowledged below and as multiple ami-cus filings make clear. App., infra, 18a n.7. This case thus presents a square and acknowledged circuit conflict over an important question affecting foreign relations in which the Ninth Circuit rejected the repeatedly ex-pressed position of the Executive Branch.

The Ninth Circuit’s decision also creates a conflict on another important issue with international ramifications. The court held that, in determining whether a respond-ent has a sufficient property interest to permit execution under § 1610(g) or the Terrorism Risk Insurance Act, courts should look to state rather than federal law. Ap-plying that rule, it held that California law permits exe-cution even if the debtor has no ownership interest. That

3 ruling conflicts with the D.C. Circuit’s decision in Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013), which held that federal law controls and that fed-eral law requires ownership of the property—an inter-pretation the United States has repeatedly urged as well. That conflict likewise warrants review.

STATEMENT I. STATUTORY FRAMEWORK

A. The Foreign Sovereign Immunities Act 1. For most of this Nation’s history, foreign sover-

eigns were completely immune from suit. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). In 1952, however, the State Department adopted the “re-strictive theory” of immunity, which denies immunity to a state’s “strictly commercial” acts. See id. at 486-487. Two decades later, Congress enacted the Foreign Sover-eign Immunities Act of 1976 (“FSIA”), Pub. L. No. 94-583, 90 Stat. 2891 (codified as amended at 28 U.S.C. §§ 1602 et seq.), which largely codifies that restrictive theory. See H.R. Rep. No. 94-1487, at 7 (1976).

The FSIA addresses both the immunity of foreign sov-ereigns from suit and the immunity of sovereign property from attachment and execution. With respect to immu-nity from suit, the FSIA preserves the general rule that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States.” 28 U.S.C. § 1604. Section 1605 then lists carefully circum-scribed exceptions to that jurisdictional immunity. Id. § 1605. Under the Act’s “commercial activity” exception, for example, a foreign sovereign is not immune from an action “based upon a commercial activity carried on in the United States by the foreign state.” Id. § 1605(a)(2).

4 The FSIA separately addresses the immunity of sov-

ereign property from attachment and execution. Before the FSIA’s enactment, sovereign property “enjoy[ed] ab-solute immunity from execution,” even under the restric-tive theory of immunity. H.R. Rep. No. 94-1487, at 8. Plaintiffs who obtained judgments against foreign sover-eigns thus had to rely on sovereign grace for their satis-faction. Ibid. The FSIA retains the general rule that “property in the United States of a foreign state [or agency or instrumentality] shall be immune from at-tachment arrest and execution.” 28 U.S.C. § 1609. But the Act provides limited exceptions in § 1610.

Section 1610(a) provides that sovereign property is subject to execution if the property is “used for a com-mercial activity in the United States” and one of certain other conditions applies. 28 U.S.C. § 1610(a). For exam-ple, under § 1610(a)(2), a sovereign’s commercial property is subject to execution if the property “is or was used for the commercial activity upon which the claim is based.” Id. § 1610(a)(2). Section 1610(b) provides additional ex-ceptions for property of sovereign agencies or instrumen-talities such as government corporations. Such property is subject to execution if the agency or instrumentality is “engaged in commercial activity in the United States” and another listed condition applies. Id. § 1610(b). Thus, consistent with the restrictive theory of immunity, both § 1610(a) and § 1610(b) require commercial activity.

2. As a general matter, the FSIA does not address when a sovereign’s agencies or instrumentalities may be held liable for judgments against the sovereign itself. This Court resolved that issue in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) (“Bancec”). Bancec explained that the FSIA “was not intended to affect the substantive law de-

5 termining the liability of a foreign state or instrumental-ity, or the attribution of liability among instrumentalities of a foreign state.” Id. at 620. Instead, such matters are governed by substantive international and federal com-mon law. Id. at 626-627. Applying that substantive law, the Court held that “government instrumentalities estab-lished as juridical entities distinct and independent from their sovereign should normally be treated as such.” Ibid.

Bancec identified two limited exceptions to that pre-sumption of separate treatment: first, where the sover-eign and instrumentality are alter egos; and second, where the sovereign abuses the corporate form to “ ‘work fraud or injustice.’ ” 462 U.S. at 629-630. In the wake of Bancec, some courts developed five “factors” to deter-mine whether that presumption of separate status was overcome. See, e.g., Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071 n.9 (9th Cir. 2002).

B. The Terrorism Amendments to the FSIA Over the last two decades, Congress has repeatedly

amended the FSIA in connection with terrorism claims.

1. In 1996, Congress enacted a new exception to ju-risdictional immunity for terrorism claims. See Antiter-rorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241 (formerly codified at 28 U.S.C. § 1605(a)(7)). That exception permits suits against certain sovereigns for acts of terrorism or mate-rial support for such acts. 28 U.S.C. § 1605A(a).

The 1996 amendments also created new exceptions to attachment and execution immunity for judgments in terrorism cases. Section 1610(a)(7) provides that a for-eign sovereign’s property “used for a commercial activity in the United States” is subject to execution to satisfy a terrorism judgment “regardless of whether the property

6 is or was involved with the act upon which the claim is based.” 28 U.S.C. § 1610(a)(7). Section 1610(b)(3) like-wise provides that property of a foreign sovereign agency or instrumentality “engaged in commercial activity in the United States” is subject to execution to satisfy a terror-ism judgment against it “regardless of whether the prop-erty is or was involved in the act upon which the claim is based.” Id. § 1610(b)(3).

2. Two years later, Congress added another excep-tion for assets the Executive Branch had “blocked” under economic sanctions statutes. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, § 117, 112 Stat. 2681, 2681-491 (1998). Codified as § 1610(f )(1), it provides:

Notwithstanding any other provision of law, * * * any property with respect to which financial trans-actions are prohibited or regulated pursuant to [various statutes] shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (includ-ing any agency or instrumentality o[f ] such state) claiming such property is not immune under section 1605(a)(7) * * * .

28 U.S.C. § 1610(f )(1)(A). Subsection (f )(2) provides that the “Secretary of the Treasury and the Secretary of State should make every effort to fully, promptly, and effectively assist any judgment creditor * * * in identi-fying, locating, and executing against the property” of a foreign state to satisfy a terrorism judgment. Id. § 1610(f )(2)(A).

Congress authorized the President to waive the exe-cution mechanism in subsection (f )(1) “in the interest of national security.’’ Pub. L. No. 105-277, § 117(d), 112 Stat. at 2681-492. The President immediately issued a

7 blanket waiver, finding that the provision “would impede [his] ability * * * to conduct foreign policy in the interest of national security.” 63 Fed. Reg. 59,201 (Oct. 21, 1998).

In 2000, Congress repealed the provision authorizing that waiver. See Victims of Trafficking and Violence Pro-tection Act of 2000, Pub. L. No. 106-386, § 2002(f )(2), 114 Stat. 1464, 1543. Following Executive Branch opposition, however, a new waiver provision was added to the bill before its enactment. See id. § 2002(f )(1)(B), 114 Stat. at 1543 (codified at 28 U.S.C. § 1610(f )(3)). The President then promptly issued another blanket waiver under that new provision. 65 Fed. Reg. 66,483 (Oct. 28, 2000).

3. In 2002, Congress enacted § 201 of the Terrorism Risk Insurance Act of 2002 (“TRIA”), Pub. L. No. 107-297, § 201, 116 Stat. 2322, 2337 (reproduced at 28 U.S.C. § 1610 note). As amended, § 201(a) provides:

Notwithstanding any other provision of law, * * * in every case in which a person has obtained a judg-ment against a terrorist party on a claim based up-on an act of terrorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) * * * , the blocked assets of that terrorist party (in-cluding the blocked assets of any agency or instru-mentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment * * * .

28 U.S.C. § 1610 note § 201(a).

4. In 2008, Congress again amended the FSIA’s ter-rorism provisions. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338. That statute revised § 1605(a)(7)’s exception to jurisdictional immunity and recodified it as § 1605A. See 28 U.S.C. § 1605A.

8 The 2008 amendments also added a new provision ad-

dressing execution, codified as 28 U.S.C. § 1610(g). That provision states:

[T]he property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judg-ment as provided in this section, regardless of—

(A) the level of economic control over the property by the government of the foreign state;

(B) whether the profits of the property go to that government;

(C) the degree to which officials of that gov-ernment manage the property or otherwise con-trol its daily affairs;

(D) whether that government is the sole ben-eficiary in interest of the property; or

(E) whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.

28 U.S.C. § 1610(g)(1) (emphasis added). The five factors in paragraphs (A) through (E) are the same five “Bancec factors” that some courts had used to determine whether a plaintiff had overcome Bancec’s presumption of sepa-rate status. See, e.g., Flatow, 308 F.3d at 1071 n.9.

9

II. PROCEEDINGS BELOW A. Proceedings in the District Court

Petitioner Bank Melli is an Iranian commercial bank whose stock is currently wholly owned by the Iranian government. App., infra, 8a. Respondents are four groups of plaintiffs who hold default judgments against Iran for terrorist attacks by organizations that allegedly received financial or other support from the Iranian gov-ernment. Ibid. “Bank Melli was not named as a defend-ant in any of the four cases * * * and was not itself al-leged to have been involved in the underlying terrorist events.” Id. at 8a-9a.

In December 2011, one group of plaintiffs sought to satisfy their default judgment against Iran by executing against approximately $17.6 million in funds held by Visa Inc. in a Franklin Resources Inc. mutual fund. App., in-fra, 9a, 81a n.1, 84a. Those funds relate to an arrange-ment between Visa and Bank Melli under which Bank Melli agreed to honor Visa cards at its branches in Iran. Id. at 9a. Visa has been unable to pay the funds to Bank Melli due to various sanctions orders, including an Octo-ber 2007 order that blocked Bank Melli’s property inter-ests in the United States because of its banking activities in Iran. Ibid. The complaint alleges that the funds in the Visa account are “ ‘due and owing by contract to Bank Melli pursuant to a commercial relationship with [Visa].’ ” Id. at 82a (quoting Compl. ¶ 16). The complaint does not allege that Bank Melli owns the funds—only that it is “ ‘ow[ed]’ ” the funds. Ibid. Visa and Franklin responded to the suit by filing an interpleader complaint against Bank Melli and other parties with potential claims to the assets. Id. at 9a.

The district court denied Bank Melli’s motion to dis-miss. App., infra, 81a-104a. The court did not dispute

10 that Bank Melli is juridically distinct from the Iranian government. Rejecting Bank Melli’s contrary argu-ments, however, the court held that TRIA and § 1610(g) permit plaintiffs to satisfy their judgments against Iran by executing against assets of Bank Melli. Id. at 85a-87a.

The district court further held that both § 1610(g) and TRIA apply even though the complaint does not allege that Bank Melli actually owns the assets at issue. App., infra, 97a-99a. The court acknowledged that, “[f]or TRIA or section 1610(g) to apply, the funds at issue must be ‘assets of ’ or ‘property of ’ Bank Melli.” Id. at 97a. And it agreed that the complaint alleged only that the funds “are ‘due and owing by contract to Bank Melli,’ not that Bank Melli ‘owns’ them.” Ibid. But the court deemed that distinction immaterial because “California enforce-ment law authorizes a court to ‘order the judgment debt-or to assign to the judgment creditor . . . all or part of a right to payment due or to become due.’ ” Id. at 97a-99a.1

Acknowledging “substantial ground for difference of opinion,” the court certified its order for interlocutory appeal. App., infra, 103a-104a & n.15.

B. The Court of Appeals’ Decisions The Ninth Circuit affirmed. App., infra, 67a-80a. It

then withdrew that opinion on rehearing and replaced it with a new opinion. Id. at 35a-66a. On further rehearing, the court withdrew that opinion as well and replaced it with yet another one. Id. at 1a-34a.

1 The district court also held that applying TRIA and § 1610(g) here would not be impermissibly retroactive, App., infra, 87a-97a, and that Federal Rule of Civil Procedure 19 did not require dismissal, id. at 100a-103a. Those rulings, and the corresponding rulings of the court of appeals, id. at 20a-21a, 24a-26a, are not at issue in this petition.

11 1. In its first opinion, the court of appeals rejected

Bank Melli’s argument that neither TRIA nor § 1610(g) abrogates the immunity of the assets at issue. App., infra, 72a-75a. Bank Melli urged that § 1610(g) is not a freestanding exception to immunity. Id. at 74a. By its terms, the provision permits execution against assets of a sovereign or its agencies or instrumentalities to satisfy terrorism judgments “as provided in this section, regard-less of ” the five Bancec factors. 28 U.S.C. § 1610(g)(1) (emphasis added). The statute thus allows execution against instrumentality assets to satisfy debts of the sov-ereign notwithstanding Bancec’s usual presumption of separate status. But as Bank Melli explained, that is all the provision does: Section 1610(g) does not eliminate the need to meet one of the Act’s criteria for overcoming immunity elsewhere in § 1610. It simply allows execu-tion “as provided in” § 1610 “regardless of ” the five Bancec factors that might otherwise preclude execution. The Ninth Circuit rejected that interpretation, asserting that it would “render section 1610(g) a nullity” because other provisions of the FSIA already permit attachment of instrumentality assets. App., infra, 74a-75a.

The Ninth Circuit also rejected the argument that Bank Melli did not have a sufficient property interest in the assets to permit execution. App., infra, 79a-80a. Section 1610(g) applies only to “property of ” the sover-eign, 28 U.S.C. § 1610(g)(1), and TRIA applies only to “assets of ” the sovereign, 28 U.S.C. § 1610 note § 201(a). Bank Melli urged that those provisions require owner-ship of the assets and thus do not apply here: Bank Melli does not own the funds in the Visa account; Visa merely owes money to Bank Melli. The Ninth Circuit disagreed, holding that, “under California law, money ‘owed to’

12 Bank Melli may be assigned to judgment creditors.” App., infra, 80a.

2. After Bank Melli sought rehearing, the Ninth Cir-cuit withdrew its original opinion and filed an amended opinion, over a partial dissent by Judge Benson. App., infra, 35a-66a. In seeking rehearing, Bank Melli urged that the Ninth Circuit’s constructions of TRIA and § 1610(g) contradicted the positions of the United States. C.A. Dkt. 74, at 1. The court invited the United States to submit an amicus brief “addressing whether rehearing on the proper interpretation of section 1610(g) is war-ranted.” C.A. Dkt. 75, at 3.

The United States filed a brief agreeing with Bank Melli’s position. “The plain text of section 1610(g),” it urged, “makes clear that its specified property is ‘subject to attachment . . . as provided in this section.’ ” C.A. Dkt. 82, at 8. Section 1610(g) thus “plainly incorporates by reference the other requirements for attaching foreign state property provided under 1610.” Ibid. The United States also sua sponte urged the court to grant rehearing on whether § 1610(g) and TRIA allow execution against assets that the sovereign or its agency or instrumentality does not own. On that issue, the United States agreed with Bank Melli that TRIA and § 1610(g) apply only where the sovereign actually owns the property at issue. Id. at 14.

In response, the Ninth Circuit withdrew its original opinion and filed a new one, adhering to its original con-clusions while supplying new rationales. The court re-affirmed its holding that “subsection (g) contains a free-standing provision for attaching and executing against assets of a foreign state or its agencies or instrumentali-ties.” App., infra, 46a. The court acknowledged that § 1610(g) permits attachment only “ ‘as provided in this

13 section.’ ” Id. at 47a. But the court posited that, “[w]hen subsection (g) refers to attachment and execution of the judgment ‘as provided in this section,’ it is referring to procedures contained in § 1610(f )”—a theory no party had advanced. Ibid. The court claimed support from two Seventh Circuit decisions, Wyatt v. Syrian Arab Repub-lic, 800 F.3d 331 (7th Cir. 2015), cert. denied, 136 S. Ct. 1721 (2016); and Gates v. Syrian Arab Republic, 755 F.3d 568 (7th Cir. 2014). App., infra, 49a-50a.

The Ninth Circuit likewise adhered to its prior ruling that TRIA and § 1610(g) are not limited to assets owned by the sovereign. App., infra, 54a-56a. Although Bank Melli urged that TRIA and § 1610(g) both require owner-ship as a matter of federal law, the court held that it would “look to state law to determine the ownership of assets in this context.” Id. at 54a. “California law author-izes a court to order a judgment debtor to assign to the judgment creditor a right to payments that are due or will become due,” so “[u]nder California law, those assets are property of Bank Melli and may be assigned to judgment creditors.” Id. at 55a.

The Ninth Circuit acknowledged that, in Heiser v. Is-lamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013), the D.C. Circuit held that “federal law * * * govern[s] this question.” App., infra, 55a. But the court deemed that holding immaterial because “Federal law and California law are aligned.” Ibid. The court identified no language in TRIA or § 1610(g) that permits execution absent own-ership. But it pointed to the allegedly “expansive word-ing” of the statutes. Id. at 55a-56a.

Judge Benson dissented in part, opining that “the ma-jority erred in finding § 1610(g) to be a freestanding im-munity exception.” App., infra, 59a. He agreed with Bank Melli and the United States that “the language ‘as

14 provided in this section’ requires a judgment creditor to find an existing mechanism of attachment under § 1610.” Id. at 61a. Interpreting § 1610(g) as a freestanding im-munity exception, Judge Benson urged, would have “un-justified and unfortunate result[s]” because it would al-low plaintiffs to seize sovereign property without regard to its commercial status. Id. at 64a-66a. Judge Benson noted that, in Rubin v. Islamic Republic of Iran, No. 14-1935 (7th Cir.)—a case then pending before the Seventh Circuit—the plaintiffs were relying on the same mistaken interpretation of § 1610(g) to try to seize ancient Persian artifacts that Iran had loaned to museums for academic study. App., infra, 65a.2

3. Bank Melli again sought rehearing, and the Ninth Circuit issued yet another opinion. App., infra, 1a-34a. In seeking rehearing, Bank Melli explained that the ma-jority’s theory—that § 1610(g)’s reference to execution “as provided in this section” “refer[s] to procedures con-tained in § 1610(f )”—was implausible: The President’s blanket waiver had rendered §1610(f )’s execution mech-anism inoperative the day it was enacted, a fact of which the court was apparently unaware. C.A. Dkt. 93, at 9-11. It made no sense to construe the phrase “as provided in this section” as a reference to a provision that was not operative when Congress enacted § 1610(g) and has never been operative.

2 Judge Benson opined that the Visa funds could be attached under the commercial activity exception in § 1610(b)(3). App., infra, 61a-62a. The majority never endorsed that analysis. As Bank Melli ex-plained below, plaintiffs waived any reliance on § 1610(b)(3) by not invoking the provision. C.A. Dkt. 88, at 1-3. Besides, the provision applies only to “commercial activity in the United States” and thus excludes Bank Melli’s Visa program in Iran. Id. at 3-4.

15 The Ninth Circuit’s third opinion responded that, al-

though the President had waived the execution mecha-nism in § 1610(f )(1), “[s]everal other parts of subsection (f ) * * * have always remained fully enforced.” App., infra, 15a n.5. The court did not identify the “[s]everal other parts” it had in mind. The only other paragraphs in subsection (f ) are (f )(2) and (f )(3), neither of which pro-vides for execution at all. Paragraph (f )(2) merely en-courages federal agencies to assist plaintiffs in identi-fying, locating, and executing against assets. And para-graph (f )(3) merely sets forth the President’s authority to waive the execution mechanism in subsection (f )(1).

The court also stated that, “regardless of the partial waiver, all of subsection (f ) remains the law,” and the waiver simply “demonstrates presidential disagreement with congressional intent.” App., infra, 15a n.5. The court described Bank Melli’s position as a “blinders-on, technical” argument that “loses sight of Congress’ main aim”—to allow terrorism plaintiffs “to get their money from terrorist states.” Ibid.

The Ninth Circuit also added a new footnote “acknowl-edg[ing] that the United States, appearing as amicus cu-riae, disagrees with our interpretation.” App., infra, 18a n.7. The court asserted that it was “not required to defer to the government’s view,” because it was engaging in a “routine exercise of statutory interpretation.” Ibid. The Executive Branch had “approved the building blocks of the statutory criteria” by, among other things, “sign[ing] the legislation that became § 1610(g).” Ibid.3

Having twice granted rehearing and modified its opin-ions, the Ninth Circuit announced that no further rehear-

3 The Ninth Circuit adhered to its prior ruling that TRIA and § 1610(g) do not require ownership. App., infra, 21a-24a.

16 ing petitions would be allowed. App., infra, 3a. Judge Benson again dissented from the court’s interpretation of § 1610(g). Id. at 27a-34a. The Ninth Circuit stayed the mandate pending this Court’s review. Id. at 105a-106a.

REASONS FOR GRANTING THE PETITION The Ninth Circuit held below that § 1610(g) of the

FSIA is a freestanding exception to immunity—that it permits execution against sovereign property without regard to any of the Act’s traditional limitations. That holding squarely conflicts with the Seventh Circuit’s de-cision in Rubin v. Islamic Republic of Iran, — F.3d —, 2016 WL 3903409 (7th Cir. July 19, 2016), which holds that “[s]ection 1610(g) is not itself an exception to execu-tion immunity for terrorism-related judgments.” Id. at *13. The Seventh Circuit expressly “disagree[d] with the Ninth Circuit’s interpretation of subsection (g)” in this case, finding the Ninth Circuit’s reading an “implau-sibl[e],” “highly strained” interpretation that “makes no sense.” Id. at *12-13. Section 1610(g), the Seventh Cir-cuit observed, merely “abrogates the Bancec rule for ter-rorism-related judgments,” allowing plaintiffs to pursue assets of separate agencies and instrumentalities to sat-isfy the sovereign’s debts. Ibid. But a plaintiff must still “satisfy an exception to execution immunity found else-where in § 1610.” Ibid.

The Ninth Circuit’s decision also creates a conflict with the D.C. Circuit on the second question presented. TRIA and § 1610(g) apply only to “property of ” or “as-sets of ” the foreign sovereign. According to the Ninth Circuit, the scope of those provisions is a question of state rather than federal law. And because California law allows creditors to execute against funds even absent an ownership interest, the court held, those provisions do as well. That holding conflicts with the D.C. Circuit’s deci-

17 sion in Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013), which held that federal rather than state law governs, and that federal law requires ownership of the property.

Both conflicts are important. The Ninth Circuit “ac-knowledge[d] that the United States * * * disagrees with [its] interpretation” of § 1610(g). App., infra, 18a n.7. In fact, the United States has advocated against the Ninth Circuit’s interpretation in multiple circuits. The United States has also repeatedly rejected the Ninth Circuit’s view that TRIA and § 1610(g) permit execution even where the sovereign does not own the assets. The Ninth Circuit’s rejection of the Executive Branch’s longstand-ing positions on two issues implicating foreign relations underscores the need for this Court’s review—particu-larly because the decision places the United States in vio-lation of its solemn treaty obligations.

The decision below has far-reaching consequences. The Ninth Circuit’s mistaken interpretation of § 1610(g) allows execution without regard to any of the FSIA’s tra-ditional criteria—including the settled limitation to com-mercial activity. The consequences are well illustrated by the facts in Rubin, where plaintiffs sought to invoke § 1610(g) to seize ancient Persian artifacts that Iran had loaned to American museums for academic study. The Ninth Circuit’s holding that neither TRIA nor § 1610(g) requires ownership has similarly broad ramifications: It allows attachment of a wide variety of property interests that may adversely affect third parties’ rights. Both holdings warrant this Court’s review.

18 I. THE NINTH CIRCUIT’S HOLDING THAT § 1610(g) IS A

FREESTANDING IMMUNITY EXCEPTION WARRANTS

REVIEW A. The Ninth Circuit’s Decision Conflicts with the

Seventh Circuit’s Decision in Rubin The circuit conflict could not be more clear. In this

case, the Ninth Circuit held that § 1610(g) is “a freestand-ing provision for attaching and executing against assets of a foreign state or its agencies or instrumentalities.” App., infra, 13a. Only a month later, the Seventh Circuit expressly rejected that interpretation of § 1610(g) in Rubin v. Islamic Republic of Iran, — F.3d —, 2016 WL 3903409 (7th Cir. July 19, 2016), holding that § 1610(g) “is not a freestanding terrorism exception to execution im-munity.” Id. at *2 (emphasis added).

In Rubin, plaintiffs with default judgments against Iran sought to execute against ancient Persian artifacts at the University of Chicago and the Field Museum of Natural History, most of which Iran had loaned to the museums for academic study. 2016 WL 3903409, at *1-2. Like the plaintiffs here, the Rubin plaintiffs argued that § 1610(g) is a “freestanding exception to execution im-munity for terrorism-related judgments” that “makes all Iranian assets available for execution without proof of a nexus to commercial activity.” Id. at *8.

The Seventh Circuit rejected that interpretation. By its terms, the court explained, § 1610(g) “is not a free-standing terrorism exception to execution immunity.” 2016 WL 3903409, at *2. Section 1610(g) declares that certain assets of a sovereign and its agencies or instru-mentalities are subject to execution “as provided in this section, regardless of ” the five Bancec factors. 18 U.S.C. § 1610(g)(1). That language “lifts the Bancec rule for holders of terrorism-related judgments, allowing attach-

19 ment in aid of execution ‘as provided in this section’ with-out regard to the presumption of separateness.” 2016 WL 3903409, at *2. But the statute merely renders such assets subject to “ ‘execution . . . as provided in this sec-tion.’ ” Id. at *10. “The highlighted phrase makes very little sense—indeed, is entirely superfluous—if subsec-tion (g) is itself a freestanding exception to execution immunity.” Ibid.

Plaintiffs’ interpretation “also creates superfluities in other parts of the statute.” 2016 WL 3903409, at *10. Sections 1610(a)(7) and (b)(3) already provide for execu-tion of terrorism judgments in cases of commercial activ-ity. But “[i]f subsection (g) paves a dedicated lane for all execution actions by victims of state-sponsored terror-ism, then § 1610(a)(7) and (b)(3) serve no purpose at all.” Ibid. That result is particularly improbable because Congress amended §§1610(a)(7) and (b)(3) at the same time it enacted § 1610(g)—amendments that would have been pointless if plaintiffs’ construction of § 1610(g) were correct. Id. at *10 n.5.

The Seventh Circuit discussed the Ninth Circuit’s ra-tionale for its contrary ruling at length. The Ninth Cir-cuit, it observed, “purported to explain away the ‘as pro-vided in this section’ language in subsection (g) by inter-preting it to apply only to § 1610(f ).” 2016 WL 3903409, at *12. The court rejected that reading as a “highly strained interpretation” because it “implausibly reads the word ‘section’ as ‘subsection,’ so the phrase ‘as pro-vided in this section’ actually means ‘as provided in sub-section (f ).’ ” Ibid.

“Second, and importantly, § 1610(f ) never became op-erative.” 2016 WL 3903409, at *13. As a result, the pro-vision “does not allow any form of execution.” Ibid. “It therefore makes no sense to say, as the Bennett majority

20 does, that the phrase ‘as provided in this section’ in sub-section (g) refers only to subsection (f ), an inoperative part of the statute. If that were the case, then execution ‘as provided in this section’ would mean no execution at all.” Ibid.

For those reasons, the Seventh Circuit “disagree[d] with the Ninth Circuit’s interpretation of subsection (g).” 2016 WL 3903409, at *13. The court noted that the Ninth Circuit, in reaching its contrary view, had relied on two earlier Seventh Circuit cases. Ibid. Those cases, the Seventh Circuit explained, merely “assume[ ] rather than decide[ ] the crucial antecedent question—that is, wheth-er § 1610(g) is itself a freestanding exception to execution immunity.” Id. at *11. “To the extent that [those cases] can be read as holding that § 1610(g) is a freestanding exception to execution immunity for terrorism-related judgments,” it held, “they are overruled.” Id. at *13. Be-cause the decision “overrule[d] circuit precedent and cre-ate[d] a conflict with the Ninth Circuit,” the panel circu-lated the opinion to all active judges, a majority of whom did not vote to rehear the case en banc. Id. at *13 n.6.

The conflict between the Seventh Circuit’s decision in Rubin and the Ninth Circuit’s decision below thus could not be more clear. One decision holds that § 1610(g) is “a freestanding provision for attaching and executing against assets” for terrorism-related judgments, App., infra, 13a; the other holds that “subsection (g) * * * is not a freestanding terrorism exception to execution immu-nity,” Rubin, 2016 WL 3903409, at *2 (emphasis added). The Seventh Circuit expressly “disagree[d] with the Ninth Circuit’s interpretation”; expressly rejected the Ninth Circuit’s rationale; and circulated its opinion in-ternally for an en banc poll precisely because it was “creat[ing] a conflict with the Ninth Circuit.” 2016 WL

21 3903409, at *12-13 & n.6. A more stark and unambiguous circuit conflict is hard to imagine.4

The legal issue was thoroughly addressed by both courts of appeals. It spawned three different opinions in the Ninth Circuit. That court addressed the issue at length and refused to change course despite Judge Ben-son’s dissent and the amicus filing by the United States. The Seventh Circuit circulated its opinion internally for en banc review, generating only a solitary dissenting vote to rehear the case. Rubin, 2016 WL 3903409, at *13 n.6. The legal issue has thus been thoroughly considered by both courts and is ripe for this Court’s review.

B. The Ninth Circuit’s Decision Is Incorrect The Ninth Circuit’s decision is also incorrect, for rea-

sons well explained by the Seventh Circuit. Section 1610(g) permits creditors to execute terrorism judgments against the assets of a foreign sovereign or the assets of its agencies or instrumentalities “as provided in this sec-tion, regardless of ” the five Bancec factors. 28 U.S.C. § 1610(g)(1) (emphasis added). By its plain terms, that language merely eliminates the five Bancec factors as a barrier to recovery. It is not naturally read as a free-standing exception to immunity. If Congress had in-tended to create a freestanding immunity exception, it would have said that such assets are subject to execution,

4 In addition, two other circuits have recently described § 1610(g) as a freestanding immunity exception without any analysis of the “as provided in this section” language. See Weinstein v. Islamic Repub-lic of Iran, — F.3d —, 2016 WL 4087940, at *8 (D.C. Cir. Aug. 2, 2016) (petition for rehearing pending) (characterizing § 1610(g) as “strip[ping] execution immunity from all property of a defendant sovereign” for terrorism judgments); Kirschenbaum v. 650 Fifth Ave., — F.3d —, 2016 WL 3916001, at *6 (2d Cir. July 20, 2016) (peti-tion for rehearing pending) (same in dicta).

22 period—not that they are subject to execution “as pro-vided in this section, regardless of ” Bancec.

The Ninth Circuit failed to provide any plausible account for Congress’s inclusion of the phrase “as pro-vided in this section.” The court held that, “[w]hen sub-section (g) refers to attachment and execution of the judgment ‘as provided in this section,’ it is referring to procedures contained in § 1610(f ).” App., infra, 14a. But, as the Seventh Circuit explained, that is an “implau-sibl[e],” “highly strained” interpretation that “makes no sense.” Rubin, 2016 WL 3903409, at *12-13. Section 1610(g) refers to “this section,” not any particular sub-section. 28 U.S.C. § 1610(g)(1) (emphasis added). And regardless, because the President waived § 1610(f )’s exe-cution mechanism the day it was enacted, “execution ‘as provided in this section’ would mean no execution at all.” Rubin, 2016 WL 3903409, at *13.

The Ninth Circuit offered three arguments in re-sponse, but none withstands scrutiny. The court first as-serted that, although the President waived the execution mechanism in § 1610(f )(1), “[s]everal other parts of sub-section (f ) * * * have always remained fully enforced.” App., infra, 15a n.5. While the court did not identify the “[s]everal other parts” it had in mind, the only other pro-visions in subsection (f )—paragraphs (f )(2) and (f )(3)—do not contain any mechanisms for execution. Paragraph (f )(2) merely encourages federal agencies to assist plain-tiffs in identifying, locating, and executing against assets. And paragraph (f )(3) sets forth the President’s authority to waive the execution mechanism in subsection (f )(1). It strains credulity to suggest that, when Congress pro-vided for “execution * * * as provided in this section, re-gardless of ” the five Bancec factors, the “section” Con-

23 gress had in mind was two paragraphs that do not set forth any execution mechanism at all.

Second, the Ninth Circuit urged that, “regardless of the partial waiver, all of subsection (f ) remains the law,” and the waiver merely “demonstrates presidential dis-agreement with congressional intent.” App., infra, 15a n.5. But the point here is not that the Court should fol-low the President’s intent rather than Congress’s. The point is simply that it is implausible to infer that Con-gress intended the phrase “as provided in this section” to refer to a provision that was not operative when Con-gress enacted § 1610(g) and has never been operative. Under the Ninth Circuit’s interpretation, “execution ‘as provided in this section’ would mean no execution at all.” Rubin, 2016 WL 3903409, at *13. That makes no sense.

Finally, the Ninth Circuit accused Bank Melli of advo-cating a “blinders-on, technical” approach that “loses sight of Congress’ main aim” to allow terrorism plaintiffs “to get their money from terrorist states.” App., infra, 15a n.5. That “plaintiffs should win” rule of construction defies settled principles. This Court has admonished that “no legislation pursues its purposes at all costs,” and that it “frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the stat-ute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-526 (1987). The Ninth Circuit’s atextual interpretation ignores that principle.

II. THE NINTH CIRCUIT’S INTERPRETATION OF THE

OWNERSHIP REQUIREMENT WARRANTS REVIEW The Ninth Circuit’s ruling on the ownership issue

likewise warrants review. TRIA and § 1610(g) permit ex-ecution only against “assets of ” or “property of ” the sov-ereign. 28 U.S.C. § 1610(g)(1); 28 U.S.C. § 1610 note § 201(a). The Ninth Circuit held that those provisions

24 should be interpreted according to state rather than fed-eral law, and that plaintiffs could seize the funds that Visa owes Bank Melli because California law would per-mit them to do that. App., infra, 21a-24a. That holding conflicts with a decision of the D.C. Circuit.

A. The Ninth Circuit’s Decision Conflicts with the D.C. Circuit’s Decision in Heiser

In Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013), plaintiffs with a default judgment against Iran sought to attach certain electronic funds transfers that had been blocked under various sanctions programs. Id. at 935. Iranian banks, although neither the origina-tors nor the beneficiaries of the transfers, had a “contin-gent future possessory interest” because the recipients maintained their accounts at those banks. Id. at 936-937. The question was whether the funds were subject to at-tachment and execution under TRIA or § 1610(g).

The D.C. Circuit held that they were not. Those stat-utes, the court observed, apply only to “the ‘property’ or ‘blocked assets’ of Iran.” 735 F.3d at 938. And this Court has “defin[ed] ‘of ’ in various statutes as requiring owner-ship.” Ibid. (citing Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011)). “Nothing in the legislative histories of [TRIA] § 201 or § 1610(g) suggests that Congress intended judgment creditors of foreign states to be able to attach property those states do not own.” Ibid. Dispensing with an own-ership requirement also “risks punishing innocent third parties”: The owner “could, and very well might, be an innocent person who then unjustly bears the costs” of ex-ecution. Id. at 939.

In reaching that conclusion, the D.C. Circuit refused to adopt state law as the governing standard: “Federal law, specifically § 201 and § 1610(g), is controlling. The

25 question is the content of this federal law.” 735 F.3d at 940. Adopting a uniform federal standard, the court held that plaintiffs could not attach the funds because “Iran does not own the contested accounts.” Id. at 940-941 (emphasis added). “[P]laintiffs could not attach the con-tested accounts under either § 201 or § 1610(g) without an Iranian ownership interest in the accounts,” and “be-cause Iran lacked an ownership interest,” the court de-nied the attachments. Id. at 941 (emphasis added).

The Ninth Circuit took the opposite approach here. Courts, it held, should “look to state law to determine the ownership of assets in this context.” App., infra, 22a (emphasis added). And because “California law author-izes a court to order a judgment debtor to assign to the judgment creditor a right to payments that are due,” the Ninth Circuit stated, “th[e] assets are property of Bank Melli and may be assigned to judgment creditors.” Id. at 22a-23a.

In Calderon-Cardona v. Bank of New York Mellon, 770 F.3d 993, 1000-1001 (2d Cir. 2014), cert. denied, 136 S. Ct. 893 (2016), the Second Circuit likewise looked to state rather than federal law. That case involved another effort to execute against electronic funds transfers. Id. at 995-996. The court acknowledged that “[w]hether at-tachment of the EFTs under § 1610(g) is possible turns * * * on whether [they] are ‘property of ’ [the foreign state].” Id. at 1000. In the Second Circuit’s view, “§ 1610(g) is silent as to what interest in property the for-eign state * * * must have.” Id. at 1001. The court there-fore “look[ed] to state law.” Id. at 1001-1002; see also Hausler v. JP Morgan Chase Bank, N.A., 770 F.3d 207, 211-212 (2d Cir. 2014) (reaffirming Calderon-Cardona), cert. denied, 136 S. Ct. 893 (2016).

26 The conflict between Heiser on the one hand, and Cal-

deron-Cardona and the decision below on the other, is not only square but openly acknowledged. The Ninth Circuit observed below that the D.C. Circuit took a con-trary approach in Heiser by “creating [a] federal rule of decision.” App., infra, 23a. There is thus an acknowl-edged circuit conflict over whether federal or state law determines whether a sovereign has a sufficient interest in property to permit attachment under TRIA or § 1610(g).

Perhaps seeking to avoid review, the Ninth Circuit opined that the distinction was immaterial in this case. “[E]ven if federal law should govern this question,” the court asserted, “Bank Melli would not succeed.” App., infra, 23a. According to the Ninth Circuit, the “expan-sive wording” of TRIA and § 1610(g) “suggest[s] that immediate and outright ownership of assets is not re-quired,” even under federal law. Ibid. Bank Melli’s mere status as an “intended contractual beneficiary of the con-tested funds” was enough. Id. at 23a-24a.

Far from reconciling the conflict with Heiser, that holding compounds it. Heiser held, not only that federal law governs, but that federal law requires ownership: The plaintiffs “could not attach the contested accounts under either § 201 or §1610(g) without an Iranian owner-ship interest in the accounts.” 735 F.3d at 941 (emphasis added). That holding was the opposite of the Ninth Cir-cuit’s ruling here that “immediate and outright owner-ship of assets is not required” and that Bank Melli’s mere status as an “intended contractual beneficiary” was suffi-cient. App., infra, 23a-24a.

The fact that Visa owes money to Bank Melli does not mean that Bank Melli owns the funds. Bank Melli’s staff could not simply walk into Visa’s offices, take the money, and leave. And if Visa refused to pay, that would at most

27 be a breach of contract, not theft. By holding that Bank Melli’s status as a mere “intended contractual benefi-ciary” is sufficient even absent ownership of the funds, the Ninth Circuit created yet another conflict with the D.C. Circuit’s decision in Heiser.

B. The Ninth Circuit’s Decision Is Incorrect The Ninth Circuit’s decision is also wrong. Heiser

properly held that the meaning of “assets of ” and “prop-erty of ” in TRIA and § 1610(g) is a question of federal rather than state law. “ ‘[I]n the absence of a plain indi-cation to the contrary, . . . Congress when it enacts a stat-ute is not making the application of the federal act de-pendent on state law.’ ” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989). Rather, “federal statutes are generally intended to have uniform nation-wide application.” Ibid. State law may create the prop-erty interest that satisfies the federal statutory require-ment. Cf. Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) (property interests typically defined by state law). But TRIA and § 1610(g) require, as a matter of fed-eral law, that the requisite interest exist.

Heiser also correctly identified the content of that fed-eral standard. TRIA and § 1610(g) apply only to “assets of ” or “property of ” the sovereign. 28 U.S.C. § 1610(g)(1); 28 U.S.C. § 1610 note § 201(a). As this Court has ex-plained, “ ‘the use of the word “of ” denotes ownership.’ ” Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (quoting Poe v. Seaborn, 282 U.S. 101, 109 (1930)). Ownership is thus what TRIA and § 1610(g) require. Although the Ninth Circuit pointed to “expansive wording” in other parts of the statutes, App., infra, 23a, none of the lan-guage addresses the type of property interest required. In that respect too, the Ninth Circuit erred.

28

III. THE QUESTIONS PRESENTED ARE IMPORTANT Both conflicts are important and warrant review.

A. The Ninth Circuit Rejected the United States’ Position on Issues with Important Foreign Re-lations Implications

In construing § 1610(g) as a freestanding exception to immunity, the Ninth Circuit “acknowledge[d] that the United States * * * disagrees with our interpretation.” App., infra, 18a n.7. The United States explained in its amicus brief below that “section 1610(g) is not a free-standing exception to immunity that can be invoked in-dependent of the rest of section 1610.” C.A. Dkt. 82, at 8. Rather, “a plaintiff seeking execution must * * * proceed under one or more of the exceptions to immunity sepa-rately set out in section 1610.” Id. at 1-2. Section 1610(g) merely “overrides various legal principles that might otherwise require respect for an entity’s separate juridi-cal status.” Id. at 9.

The United States has taken that same position in at least three other cases as well. See U.S. Br. in Hegna v. Islamic Republic of Iran, No. 11-1582, at 19 (2d Cir. filed Nov. 4, 2011) (“Section 1610(g) by its terms is not an in-dependent exception to execution immunity.”); U.S. Br. in Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Frym, No. 13-57182, at 29 (9th Cir. filed July 3, 2014) (similar); U.S. Br. in Rubin v. Islamic Republic of Iran, No. 14-1935, at 23 (7th Cir. filed Nov. 3, 2014) (similar). The Ninth Circuit’s inter-pretation of § 1610(g) is thus an express departure from the position of the United States.

The Ninth Circuit departed from the position of the United States on the ownership requirement as well. As the United States explained below, “TRIA and section 1610(g) only authorize plaintiffs to attach assets that are

29 ‘owned’ by the relevant foreign state (or its agency or in-strumentality).” C.A. Dkt. 82, at 2-3. “[T]he mere fact that state law authorizes attachment is insufficient” be-cause “federal law has an affirmative requirement that the assets actually be owned by the debtor state or in-strumentality.” Id. at 17.

The United States has taken that same position in at least a half-dozen other cases. See U.S. Br. in Rubin v. Islamic Republic of Iran, No. 11-2144, at 13 (1st Cir. filed June 7, 2012) (TRIA applies only to “assets owned by the relevant terrorist party”); U.S. Br. in JPMorgan Chase Bank, N.A. v. Hausler, No. 12-1264, at 15 (2d Cir. filed July 9, 2012) (similar); U.S. Br. in Calderon-Cardona v. Bank of N.Y. Mellon, No. 12-75, at 16, 24 (2d Cir. filed Sept. 21, 2012) (similar for TRIA and § 1610(g)); U.S. Br. in Heiser v. Islamic Republic of Iran, No. 12-7101, at 2 (D.C. Cir. filed Mar. 11, 2013) (similar); U.S. Br. in Villoldo v. Ruz, No. 15-1808, at 15 (1st Cir. filed Dec. 24, 2015) (similar); U.S. Br. in Weinstein v. Islamic Republic of Iran, No. 14-7193, at 14 (D.C. Cir. filed Dec. 29, 2015) (similar).

The Ninth Circuit opined that it was “not required to defer to the government’s view” because, among other things, the President “signed the legislation.” App., infra, 18a n.7. That makes no sense. The Executive’s role in enacting the statute only underscores that courts should give due consideration to its interpretation. See Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004) (Execu-tive’s interpretation of the FSIA “of considerable interest to the Court” even absent special deference).

In any event, whether or not the Ninth Circuit should have deferred to the Executive’s interpretation, the mere fact that the Ninth Circuit rejected that interpretation underscores the need for review. This Court often grants

30 certiorari due to a case’s impact on the Government’s conduct of the Nation’s foreign relations. See, e.g., Chris-topher v. Harbury, 536 U.S. 403, 412 (2002) (citing “im-portance of th[e] issue to the Government in its conduct of the Nation’s foreign affairs”); S. Shapiro et al., Su-preme Court Practice § 4.13, at 270-271 (10th ed. 2013).

That impact is particularly serious here given the United States’ treaty obligations. The Treaty of Amity between the United States and Iran requires the United States to respect the juridical status of Iranian compa-nies and to refrain from treatment that is unreasonable, discriminatory, or in violation of international law. See Treaty of Amity, Economic Relations, and Consular Rights, U.S.-Iran, arts. III-IV, Aug. 15, 1955, 8 U.S.T. 899, 902-904. By construing TRIA and §1610(g) to per-mit execution against the assets at issue without regard to traditional immunity principles or Bank Melli’s status as an entity juridically separate from the Iranian govern-ment, the Ninth Circuit put the United States in violation of those solemn obligations. Cf. App., infra, 19a-20a.

At a minimum, the Court should invite the Solicitor General to express the views of the United States. This Court routinely seeks the views of the Executive Branch when a case affects foreign relations. See, e.g., Bank Markazi v. Peterson, 135 S. Ct. 1753 (2015); Rubin v. Is-lamic Republic of Iran, 132 S. Ct. 1619 (2012); Bank Melli Iran N.Y. Representative Office v. Weinstein, 131 S. Ct. 3012 (2011). It should do likewise here.

B. The Ninth Circuit’s Erroneous Interpretation of § 1610(g) Is a Substantial Departure from Traditional Immunity Principles

The Ninth Circuit’s misinterpretation of § 1610(g) is also important for another reason: It represents a sub-

31 stantial break from traditional immunity principles long reflected in domestic and international law.

The restrictive theory denies immunity only to a state’s “strictly commercial” acts. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486-487 (1983). Congress was well aware of that limitation when it enacted the FSIA. The Act’s findings and statement of purpose recite that, “[u]nder international law, states are not immune from the jurisdiction of foreign courts insofar as their commer-cial activities are concerned, and their commercial prop-erty may be levied upon for the satisfaction of judgments rendered against them in connection with their commer-cial activities.” 28 U.S.C. § 1602 (emphasis added). The Act’s exceptions are thus limited to property “used for a commercial activity in the United States,” 28 U.S.C. § 1610(a) (emphasis added), or property of a sovereign instrumentality “engaged in commercial activity in the United States,” id. § 1610(b) (emphasis added).

That restriction reflects not just domestic tradition but international norms as well. The FSIA distinguished between commercial and non-commercial property be-cause that distinction was the rule “[u]nder international law.” 28 U.S.C. § 1602; see also H.R. Rep. No. 94-1487, at 7 (1976) (bill sought to “codify the so-called ‘restrictive’ principle of sovereign immunity, as presently recognized in international law” (emphasis added)). That distinc-tion remains the prevailing international rule today. See, e.g., United Nations Convention on Jurisdictional Immu-nities of States and Their Property, G.A. Res. 59/38, art. 19(c), U.N. Doc. A/RES/59/38 (Dec. 2, 2004) (immunity from execution inapplicable to property “specifically in use or intended for use by the State for other than gov-ernment non-commercial purposes”).

32 The Ninth Circuit’s decision places the Nation’s laws

in conflict with that traditional distinction. Under the Ninth Circuit’s ruling, sovereign property may be seized to satisfy a terrorism judgment without regard to its non-commercial character. Courts should not lightly presume that Congress intended such a dramatic departure from past practice and international law.

The far-reaching consequences of the Ninth Circuit’s approach are illustrated by the facts in Rubin. The plain-tiffs there invoked the same mistaken interpretation of § 1610(g) to try to execute against ancient Persian arti-facts that Iran had loaned to American museums for aca-demic study. 2016 WL 3903409, at *1-2. Assets like those have never traditionally been subject to execution. But under the Ninth Circuit’s interpretation, they are fair game. As the dissent warned below, that would be an “unjustified and unfortunate result.” App., infra, 33a.5

C. The Ninth Circuit’s Ruling on the Ownership Issue Presents Significant Practical Problems

The Ninth Circuit’s holding that TRIA and § 1610(g) apply whenever state law permits execution, even when the sovereign does not own the property, also threatens far-reaching consequences. Under that holding, a plain-tiff ’s ability to seize property depends entirely on the vagaries of state law, which often permits execution 5 The interlocutory nature of the Ninth Circuit’s judgment does not weigh against review. To be sure, the Ninth Circuit’s denial of the motion to dismiss the TRIA claim means that litigation over that claim may continue regardless of how this Court interprets § 1610(g). App., infra, 10a-12a. But a case may be “reviewed despite its inter-locutory status” where “there is some important and clear-cut issue of law that is fundamental to the further conduct of the case and that would otherwise qualify as a basis for certiorari.” S. Shapiro et al., Supreme Court Practice § 4.18, at 283 (10th ed. 2013). That is the situation here.

33 based on interests short of ownership. As the D.C. Cir-cuit explained in Heiser, moreover, dispensing with an ownership requirement also “risks punishing innocent third parties” because the actual owner could be “an in-nocent person who then unjustly bears the costs” of exe-cution. 735 F.3d at 939.

That approach also risks serious practical problems. For example, plaintiffs routinely invoke expansive inter-pretations of TRIA and § 1610(g) to seize electronic funds transfers, whether or not the sovereign owns the funds.6 And in the recent Bank Markazi case, the plaintiffs in-voked the same broad interpretation of TRIA to seize in-tangible security entitlements without regard to owner-ship. See Peterson v. Islamic Republic of Iran, 758 F.3d 185, 189 (2d Cir. 2014) (declining to address issue in light of special legislation directing outcome of case), aff ’d sub nom. Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016).

Under the Ninth Circuit’s approach, all those dis-putes—often with significant international ramifications—would be resolved under a patchwork of disparate state laws. Plaintiffs would be allowed to seize assets when-ever state law says they can, even if the sovereign does not own the assets. That approach threatens not only un-fairness to third parties but also serious disruption to the Nation’s financial markets. For that reason too, the Ninth Circuit’s decision warrants review.

CONCLUSION The petition for a writ of certiorari should be granted.

6 See, e.g., Heiser, 735 F.3d at 935; Calderon-Cardona, 770 F.3d at 995-996; Hausler, 770 F.3d at 210-211; Gates, 755 F.3d at 574.

Respectfully submitted.

JEFFREY A. LAMKEN Counsel of Record

ROBERT K. KRY MICHELLE J. PARTHUM MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Ave., N.W. Washington, D.C. 20037 (202) 556-2000 jlamken@mololamken.com

Counsel for Petitioner

SEPTEMBER 2016

(1a)

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———— DOCKET NOS. 13-15442, 13-16100

———— MICHAEL BENNETT; LINDA BENNETT,

AS CO-ADMINISTRATORS OF THE ESTATE OF MARIA ANN BENNETT,

Plaintiffs-Appellees,

v.

THE ISLAMIC REPUBLIC OF IRAN,

Defendant,

v.

VISA INC.; FRANKLIN RESOURCES, INC.,

Defendants-third-party-plaintiffs–Appellees,

v.

GREENBERG AND ACOSTA JUDGMENT CREDITORS,

Plaintiff-third-party-defendant–Appellee,

HEISER JUDGMENT CREDITORS,

Plaintiff-fourth-party-defendant–Appellee,

v.

BANK MELLI,

Plaintiff-third-party-defendant–Appellant.

2a ————

ORDER AND AMENDED OPINION ————

June 14, 2016

————

Appeals from the United States District Court for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

————

Argued and Submitted April 15, 2015—San Francisco, California

————

Before: Sidney R. Thomas,* and Susan P. Graber, Circuit Judges, and Dee V. Benson,** Senior District Judge.

————

Order; Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Benson

————

ORDER The opinion and partial dissent filed February 22,

2016, and reported at 817 F.3d 1131, are amended by the opinion and partial dissent filed concurrently with this order.

* Chief Judge Thomas was drawn to replace Judge Kozinski. He has read the briefs, reviewed the record, and listened to the audio-recording of oral argument held on April 15, 2015. ** The Honorable Dee V. Benson, Senior District Judge for the U.S. District Court for the District of Utah, sitting by designation.

3a With these amendments, Judges Thomas and Graber

have voted to deny Appellant’s petition for panel rehear-ing and petition for rehearing en banc. Judge Benson has voted to grant the petition for panel rehearing and has recommended granting the petition for rehearing en banc.

The full court has been advised of the petition for re-hearing en banc, and no judge of the court has requested a vote on it.

Appellant’s petition for panel rehearing and petition for rehearing en banc are DENIED. No further peti-tions for panel rehearing or for rehearing en banc may be filed.

OPINION GRABER, Circuit Judge:

Approximately 90 United States citizens (or the repre-sentatives of their estates) are attempting to collect on unsatisfied money judgments that they hold against the Islamic Republic of Iran for deaths and injuries suffered in terrorist attacks sponsored by Iran. The assets that are the subject of this interpleader action are monies con-tractually owed to Bank Melli by Visa Inc. and Franklin Resources Inc. (“Franklin”). Bank Melli is an instrumen-tality of Iran. It asserts that Plaintiffs cannot execute on the assets (1) because Bank Melli enjoys sovereign im-munity under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), (2) because the relevant statutory excep-tions to sovereign immunity may not be applied retro-actively, (3) because the blocked assets are not property of Bank Melli, and (4) because Bank Melli is a required party that cannot be joined, thus requiring dismissal un-der Federal Rule of Civil Procedure 19. We disagree and, accordingly, affirm the judgment of the district court.

4a

BACKGROUND LEGAL PRINCIPLES The jurisdiction of the United States over persons and

property within its territory “is susceptible of no limita-tion not imposed by itself.” Schooner Exch. v. Mc-Faddon, 11 U.S. (7 Cranch) 116, 136 (1812). Accordingly, foreign sovereign immunity is “a matter of grace and comity rather than a constitutional requirement.” Re-public of Austria v. Altmann, 541 U.S. 677, 689 (2004). Courts consistently “defer[ ] to the decisions of the politi-cal branches” on whether to take actions against foreign sovereigns and their instrumentalities. Id. (quoting Ver-linden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)).

The FSIA, 28 U.S.C. §§ 1330, 1602-1611, establishes a default rule that foreign states are immune from suit in United States courts. Id. at § 1604. Congress enacted the statute to provide a “comprehensive . . . ‘set of legal standards governing claims of immunity in every civil ac-tion against a foreign state or its political subdivisions, agencies, or instrumentalities.’” Altmann, 541 U.S. at 691 (quoting Verlinden B.V., 461 U.S. at 488). The FSIA provides the exclusive vehicle for subject matter jurisdic-tion in all civil actions against foreign state defendants. Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 n.1 (2016); OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 393 (2015); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1069 (9th Cir. 2002).

The FSIA includes many exceptions to its general rule of immunity. 28 U.S.C. §§ 1605-1607. Relevant here, in 1996, Congress added a new exception, stripping a for-eign state of its sovereign immunity when (1) the United States officially designates the foreign state a state spon-sor of terrorism and (2) the foreign state is sued “for per-sonal injury or death that was caused by an act of tor-

5a ture, extrajudicial killing, aircraft sabotage, hostage tak-ing, or the provision of material support or resources for such an act.” Id. at § 1605A.

Iran was designated a terrorist party pursuant to sec-tion 6(j) of the Export Administration Act of 1979, 50 U.S.C. app. § 2405(j) (effective Jan. 19, 1984). Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1123 (9th Cir. 2010); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 48 (2d Cir. 2010). That designation means that Iran is not entitled to sovereign immunity for claims under § 1605A.

Separately, the FSIA addresses the immunity of sov-ereign property from execution and attachment. Subject to enumerated exceptions, a foreign state’s property in the United States is immune from attachment and execu-tion. 28 U.S.C. § 1609.

In First National City Bank v. Banco Para el Comer-cio Exterior de Cuba (“Bancec”), 462 U.S. 611, 620-621 (1983), the Supreme Court concluded that the FSIA did not control whether and to what extent instrumentalities could be held liable for the debts of their sovereigns. Applying international law and federal common law, the Court held that “government instrumentalities estab-lished as juridical entities distinct and independent from their sovereign should normally be treated as such.” Id. at 626-627. That rule, referred to as the “Bancec pre-sumption,” may be overcome only in limited circum-stances. Id. at 628-634. The federal courts later de-scribed five “Bancec factors” that may be considered in determining whether the presumption has been over-

6a come in any given case. E.g., Flatow, 308 F.3d at 1071 n.9.1

Even after Congress added § 1605(a)(7) (now § 1605A) to the FSIA in 1996, successful plaintiffs struggled to en-force judgments against Iran when they were harmed by its terrorist activities. See, e.g., In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 49-58 (D.D.C. 2009) (describing “The Never-Ending Struggle to En-force Judgments Against Iran”). Once again, Congress responded by enacting new statutes, this time designed to facilitate the satisfaction of such judgments by expand-ing successful plaintiffs’ ability to attach and execute on the property of agencies and instrumentalities of terror-ist states. Bank Markazi, 136 S. Ct. at 1318.

First, in 2002, Congress enacted the Terrorism Risk Insurance Act of 2002 (“TRIA”), Pub. L. No. 107-297, 116 Stat. 2322. Section 201(a) of the TRIA provides:

Notwithstanding any other provision of law, and ex-cept as provided in subsection (b) [of this note, per-taining to Presidential waiver], in every case in which a person has obtained a judgment against a

1 The five factors are:

(1) the level of economic control by the government; (2) whether the entity’s profits go to the government; (3) the degree to which government officials manage the entity or

otherwise have a hand in its daily affairs; (4) whether the government is the real beneficiary of the entity’s

conduct; and (5) whether adherence to separate identities would entitle the

foreign state to benefits in United States courts while avoid-ing its obligations.

Flatow, 308 F.3d at 1071 n.9 (quoting Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375, 1380 n.7 (5th Cir. 1992)).

7a terrorist party on a claim based upon an act of ter-rorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) . . . , the blocked assets[2] of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

TRIA § 201(a) was codified as a statutory note to 28 U.S.C. § 1610 on “Treatment of Terrorist Assets.”

Second, in 2008, Congress amended the FSIA as part of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338. Among other changes, Congress added a new subsection to the FSIA, which provides in part that

the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judg-ment as provided in this section, regardless of [the same five factors described by the federal courts as the “Bancec factors”].

2 “Blocked assets” refers to “any asset seized by the Executive Branch pursuant to either the Trading With the Enemy Act or the International Emergency Economic Powers Act. See TRIA §201(d)(2).” Bank Markazi, 135 S. Ct. at 1318 (citations omitted).

8a 28 U.S.C. § 1610(g)(1); see also Bank Markazi, 136 S. Ct. at 1318 n.2. For ease of reference, we refer to this sec-tion as “FSIA § 1610(g).”

FACTUAL AND PROCEDURAL HISTORY Four groups of individuals sued the Islamic Republic

of Iran for damages arising from deaths and injuries suf-fered in terrorist attacks sponsored by Iran; in each case, a final money judgment was entered in favor of the plain-tiffs and against Iran. In Estate of Heiser v. Islamic Re-public of Iran, 659 F. Supp. 2d 20 (D.D.C. 2009), and Es-tate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006), the plaintiffs secured judgments for more than $590 million for the 1996 bombing of the Kho-bar Towers in Saudi Arabia. In Acosta v. Islamic Repub-lic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008), the plain-tiffs received a judgment of more than $350 million be-cause of a 1990 mass shooting. In Bennett v. Islamic Re-public of Iran, 507 F. Supp. 2d 117 (D.D.C. 2007), the plaintiffs obtained a judgment for damages of nearly $13 million for Iran’s role in the 2002 bombing of a cafeteria at Hebrew University in Jerusalem. And in Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (D.D.C. 2006), the plaintiffs were awarded almost $20 million for damages suffered as a result of the bombing of a Jerusa-lem restaurant in 2001. Collectively, the judgments total nearly $1 billion. Although all the judgments were taken by default, it is undisputed that all are valid final judg-ments and that Iran owes the amounts of those judg-ments to the respective plaintiffs.

Bank Melli, Iran’s largest financial institution, is whol-ly owned by the government of Iran. It is undisputed that Bank Melli qualifies as an instrumentality of Iran under the FSIA. Bank Melli was not named as a defend-ant in any of the four cases described above and was not

9a itself alleged to have been involved in the underlying ter-rorist events. On October 25, 2007, the United States Department of the Treasury, Office of Foreign Assets Control exercised its authority under Executive Order No. 13,382, 70 Fed. Reg. 38,567 (June 28, 2005), to block Bank Melli’s assets in the United States because of its in-volvement in Iran’s nuclear and missile industries. Bank Melli’s assets also are blocked pursuant to a 2012 Execu-tive Order blocking the property of Iran and of Iranian financial institutions. Exec. Order No. 13,599, 77 Fed. Reg. 6659 (Feb. 8, 2012).3

Visa and Franklin owe about $17.6 million to Bank Melli pursuant to a commercial relationship that involves the use of Visa credit cards in Iran. Visa and Franklin have not turned the funds over to Bank Melli only be-cause the funds are blocked. The Bennett judgment creditors filed a complaint against Visa and Franklin, seeking to attach and execute against the blocked assets. Visa and Franklin responded by initiating this inter-pleader action, naming as defendants Bank Melli and the three other sets of judgment creditors. Visa and Frank-lin sought a determination of the rights to the blocked as-sets in their possession and a discharge of Visa and Franklin with regard to those assets. After Bank Melli entered its appearance, it moved to dismiss the action.

Bank Melli made four arguments for dismissal, each of which the district court rejected. The court held: (1) TRIA § 201(a) and FSIA § 1610(g) enable the judg-ment creditors to attach the monies owed to Bank Melli; (2) TRIA §201(a) and FSIA § 1610(g) do not impose ret-roactive liability; (3) the blocked assets constitute proper- 3 The recent lifting of a portion of the sanctions imposed on Iran does not render this interpleader action moot, nor does it affect our analy-sis of the issues raised here.

10a ty of Bank Melli; and (4) Bank Melli was not a required party under Federal Rule of Civil Procedure 19. Bennett v. Islamic Republic of Iran, 927 F. Supp. 2d 833 (N.D. Cal. 2013). The district court denied the motion to dis-miss and certified the order for interlocutory appeal un-der 28 U.S.C. § 1292(b). Bennett, 927 F. Supp. 2d at 845-846.

STANDARD OF REVIEW We review de novo: questions of statutory construc-

tion, Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012); a district court’s ruling on a motion to dismiss for failure to state a claim or for lack of subject matter juris-diction, Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011); the question whether a statute may be applied retroactively, Scott v. Boos, 215 F.3d 940, 942 (9th Cir. 2000); and legal determinations underlying a district court’s decision whether an action can proceed in the absence of a required party under Rule 19, Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996).

DISCUSSION A. TRIA § 201(a) and FSIA § 1610(g) permit at-

tachment and execution of the monies owed to Bank Melli. 1. TRIA § 201(a)

We hold that TRIA § 201(a) permits judgment credi-tors to attach assets held by the instrumentalities of state sponsors of terrorism. As always, when interpreting a statute, we begin with its text. Metro One Telecomms., Inc. v. Comm’r, 704 F.3d 1057, 1061 (9th Cir. 2012). Sec-tion 201(a) of the TRIA applies “[n]otwithstanding any other provision of law,” “in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a ter-

11a rorist party is not immune under section 1605A or 1605(a)(7),” and “in order to satisfy such judgment to the extent of any compensatory damages for which such ter-rorist party has been adjudged liable.” TRIA § 201(a) (emphases added). The statute provides that, in cases such as this one, “the blocked assets of [the] terrorist party (including the blocked assets of any agency or in-strumentality of that terrorist party) shall be subject to execution or attachment in aid of execution.” Id. (empha-sis added). This wording demonstrates that Congress knew that the blocked assets of an instrumentality might otherwise have been excluded from the phrase “blocked assets of [the] terrorist party” and that Congress acted to ensure that, instead, the instrumentality’s blocked as-sets were included. Cf. Alejandre v. Telefonica Larga Distancia de P.R., Inc., 183 F.3d 1277, 1287, 1288 n.25 (11th Cir. 1999) (stating that a proposed amendment to the FSIA that would have applied to property that “be-longs to an agency or instrumentality of a foreign state” demonstrated that Congress “knows how to express clearly an intent to make instrumentalities substantively liable for the debts of their related foreign governments” (internal quotation marks omitted)). Accordingly, we agree with the Second Circuit when it held that it is “clear beyond cavil that Section 201(a) of the TRIA pro-vides courts with subject matter jurisdiction over post-judgment execution and attachment proceedings against property held in the hands of an instrumentality of the judgment-debtor, even if the instrumentality is not itself named in the judgment.” Weinstein, 609 F.3d at 50.

Bank Melli disputes this reading of § 201(a), arguing instead that it applies only to instrumentalities that are alter egos of the state; that is, Bank Melli argues that the Bancec presumption against the attachment of assets

12a held by state instrumentalities applies. Bank Melli rea-sons that, because “including” is a term of illustration, the words that follow are merely an example of the main preceding principle. That observation is true but is of no assistance to Bank Melli. By listing “the blocked assets of any . . . instrumentality of that terrorist party” as a specific example of assets that are “subject to execution or attachment . . . in order to satisfy” a money judgment obtained under § 1605A or § 1605(a)(7), Congress clearly instructed courts to allow the instrumentality’s blocked assets to be reached. Congress also instructed courts to allow these assets to be reached “[n]otwithstanding any other provision of law”—that is, regardless of the usual fiction embodied in Bancec. Congress purposely over-rode the Bancec presumption in this context and abro-gated attachment immunity with respect to the blocked assets of instrumentalities of designated state sponsors of terrorism. Section 201(a) permits the judgment credi-tors to attach the assets of an instrumentality of a state sponsor of terrorism. Accordingly, the blocked assets of Bank Melli that are at issue in this case may be attached.

2. FSIA § 1610(g) FSIA § 1610(g) allows attachment of and execution

against property held by a foreign terrorist state’s in-strumentality “that is a separate juridical entity,” “re-gardless of ” five factors. As noted above, those enumer-ated factors are the same five factors identified by the federal courts as the “Bancec factors” that may be used to decide whether an instrumentality is an alter ego un-der Bancec. E.g., Flatow, 308 F.3d at 1071-1072, 1071 n.9. It is clear from the text of the statute that Congress was referring to, and abrogating, not just the presump-tion of separate juridical status, but also Bancec specifi-

13a cally. Therefore, § 1610(g) also permits attachment in this case.

But Bank Melli contends that, because § 1610(g) makes assets subject to attachment and execution only “as provided in this section,” it is not an independent ex-ception to the immunity granted by 28 U.S.C. § 1609. Bank Melli reasons that subsection (g) applies only if some other part of § 1610 provides for attachment and execution. Bank Melli argues that its assets cannot be attached or executed upon because the assets at issue in this case were not “used for a commercial activity in the United States,” a requirement in § 1610(a), and Bank Melli has not itself “engaged in commercial activity in the United States,” a requirement in § 1610(b). We are not persuaded.

We hold that subsection (g) contains a freestanding provision for attaching and executing against assets of a foreign state or its agencies or instrumentalities. Sub-section (g) covers a different subject than § 1610(a) through (e): by its express terms, it applies only to “cer-tain actions,” specifically, judgments “entered under sec-tion 1605A.” (Emphasis added.) In turn, § 1605A re-vokes sovereign immunity for damages claims against a foreign state for personal injury or death caused by “tor-ture, extrajudicial killing, aircraft sabotage, hostage tak-ing, or the provision of material support” for such an act. By definition, such claims do not arise from commercial activity; they arise from acts of torture (and the like). Section 1610(g) requires only that a judgment under § 1605A have been rendered against the foreign state; in that event, both the property of the foreign state and the property of an agency or instrumentality of that state are subject to attachment and execution. See Peterson, 627 F.3d at 1123 n.2 (stating that § 1610(g) “expanded the

14a category of foreign sovereign property that can be at-tached; judgment creditors can now reach any U.S. prop-erty in which Iran has any interest, whereas before they could reach only property belonging to Iran”). To the ex-tent that subsection (g) is inconsistent with subsection (a) or (b), subsection (g) governs because the particular (judgments entered under §1605A) controls over the general (all judgments entered after a certain date). Mo-rales v. Trans World Airlines, Inc., 504 U.S. 374, 384-385 (1992).

When subsection (g) refers to attachment and execu-tion of the judgment “as provided in this section,” it is re-ferring to procedures contained in § 1610(f ).4 Section 1610(f ), like § 1610(g), relates to judgments obtained un-der § 1605A and its predecessor, § 1605(a)(7). Subsection (f )(1)(A) permits attachment and execution of property that might otherwise be blocked; subsection (f )(1)(B) prohibits attachment or execution against property of a foreign state that it expropriated from a natural person; and subsection (f )(2)(A) provides that the Secretary of State and Secretary of Treasury will make every effort to assist a court or creditor in locating property awarded pursuant to § 1605A. In light of Congress’ mandate to the executive branch to assist in the collection of judg-ments in such cases, 28 U.S.C. § 1610(f ), we cannot im-pute to Congress an empty statutory gesture. See Gates v. Syrian Arab Republic, 755 F.3d 568, 576 (7th Cir. 2014) (stating that Congress intended the 2008 amend-ments to the FSIA “to make it easier for terrorism vic-

4 When Congress enacted subsection (g), subsection (f ) already was in place. Subsection (g) was added to the statute in 2008. Pub. L. No. 110-181, div. A, tit. X, § 1083(b)(3), 122 Stat. 3, 341 (2008). Sub-section (f ) was enacted in 1998. Pub. L. No. 105-277, § 101(h), 112 Stat. 2681-491 (1998).

15a tims to obtain judgments and to attach assets”).5 Given both the text of the statute and Congress’ intention to make it easier for victims of terrorism to recover judg-ments, we hold that § 1610(g) is a freestanding provision for attaching and executing against assets to satisfy a money judgment premised on a foreign state’s act of ter-rorism.

Bank Melli argues, and our colleague agrees, that our reading of § 1610(g) renders § 1610(a)(7) and (b)(3) super-fluous.6 But the tension works in the opposite direction.

5 In its Petition for Rehearing or Rehearing En Banc, Bank Melli ar-gues that our reading of the statute must be wrong because, in 2000, President Clinton waived the enforcement of § 1610(f )(1); it reasons that “as provided in this section” therefore cannot refer to § 1610(f ). That argument fails for at least three reasons. First, only subsection (f )(1) is not being enforced. Pres. Determ. No. 2001-03, 65 Fed. Reg. 66,483 (Oct. 28, 2000). Several other parts of subsection (f )—described in text—have always remained fully enforced, so subsec-tion (g) refers, at a minimum, to the enforced portions. Second, our search is only for congressional intent when subsection (g) was en-acted. A partial waiver does not reflect congressional intent; if any-thing, it demonstrates presidential disagreement with congressional intent. And non-enforcement by the executive branch does not equal repeal by Congress; regardless of the partial waiver, all of subsection (f ) remains the law. Third, the blinders-on, technical focus of this argument loses sight of Congress’ main aim, which is for private plaintiffs who suffered torture and obtained tort judgments to get their money from terrorist states. 6 Our colleague gives two other reasons for disagreeing with us on this point. The first is that § 1610(b)(3) does not require property “to be involved in terrorism to abrogate attachment immunity.” Partial dissent at 36. We do not suggest to the contrary. The other reason is that it would be “an unjustified and unfortunate result,” id. at 38, to allow attachment and execution of non-commercial property, such as museum artifacts belonging to Iran. But it is not our province to decide whether the policy choices embodied in a statute are wise or unwise; our task is, rather, to discern congressional intent. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).

16a If § 1610(g) is interpreted to require that, to be subject to attachment and execution, property must be used by the foreign state for a “commercial activity,” § 1610(a), or that the instrumentality must be “engaged in commercial activity in the United States,” § 1610(b), then we would have to read into § 1610(g) a limitation that Congress did not insert. See United States v. Temple, 105 U.S. (9 Otto) 97, 99 (1881) (holding that the court has “no right to insert words and phrases, so as to incorporate in the statute a new and distinct provision”). Section 1610(g)(1) provides that “the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, . . . is subject to attachment in aid of execution, and execution.” (Emphases added.) Thus, Congress did not limit the type of property subject to attachment and exe-cution under § 1610(g) to property connected to commer-cial activity in the United States. The only requirement is that property be “the property of ” the foreign state or its instrumentality.

Two Seventh Circuit cases support our conclusion in this regard. In Wyatt v. Syrian Arab Republic, 800 F.3d 331, 343 (7th Cir. 2015), cert. denied, 136 S. Ct. 1721 (2016), the court held that the plaintiffs need not comply with § 1608(e) when proceeding under § 1610(g). The court noted that § 1608(e) is part of a “more general pro-cess” applicable to “suits other than those for state-sponsored terrorism, such as more ordinary contract or tort cases arising out of a foreign state’s commercial ac-tivities.” Id. at 333. Section 1610(g), the court noted, “contains provisions specific to claims for state-sponsored terrorism.” Id. Those specific provisions allow plaintiffs with a judgment against a state sponsor of terrorism, ob-tained pursuant to § 1605A, to attach and execute the

17a judgment against property of the foreign state and against property of any agency and instrumentality of the state. Id. The other provisions of § 1610, contained in subsections (a) through (c), establish a general process for judgments against a foreign state not necessarily resting on state-sponsored terrorism. Id.

Similarly, the court held in Gates that a plaintiff pro-ceeding under § 1610(g) need not comply with § 1610(c). The court wrote in part:

Sections 1610(a) and (b) are available to satisfy a wide variety of judgments, but they allow attach-ment of only specific categories of assets to satisfy those judgments. See, e.g., § 1610(a) (allowing at-tachment of foreign state property located in the United States and used for commercial activity there); § 1610(b) (allowing attachment of property of foreign state agency or instrumentality engaged in United States commercial activity).

By contrast, §1610(g) is available only to holders of judgments under the § 1605A exception for state-sponsored terrorism, but it allows attachment of a much broader range of assets to satisfy those judg-ments.

Gates, 755 F.3d at 576.

Regardless of canons of construction—such as the principle that a specific statute takes precedence over a general one—our ultimate search is for congressional in-tent. Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001). And it is quite clear that Congress meant to ex-pand successful plaintiffs’ options for collecting judg-ments against state sponsors of terrorism.

18a We acknowledge that § 1610 as a whole is ambiguous.7

In that circumstance, we may consider legislative history. Id. at 91-92; United States v. Pub. Utils. Comm’n, 345 U.S. 295, 315 (1953). That history suggests that § 1610(g) was meant to allow attachment and execution with re-spect to any property whatsoever of the foreign state or its instrumentality. Senator Lautenberg, one of the sponsors of the bill that became § 1610(g), stated that the provision would “allow[ ] attachment of the assets of a state sponsor of terrorism to be made upon the satisfac-tion of a ‘simple ownership’ test.” 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). The House Conference Report for a substantially similar ear-lier version of the bill noted that the provision “would . . . expand the ability of claimants to seek recourse against the property of that foreign state,” in part “by permitting any property in which the foreign state has a beneficial

7 We also acknowledge that the United States, appearing as amicus curiae, disagrees with our interpretation. We are not required to de-fer to the government’s view because, in deciding this case, we “are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination.” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012). To the contrary, the executive branch has approved the building blocks of the statutory criteria for execution on the property in question, which we are applying in a routine exercise of statutory interpreta-tion. The President signed the legislation that became § 1610(g), Pub. L. No. 110-181, President Bush Signs the National Defense Au-thorization Act for Fiscal Year 2008, 2008 U.S.C.C.A.N. S3 (Jan. 28, 2008); the President has not sought to waive enforcement as was done with respect to § 1610(f )(1); the Secretary of State listed Iran as a terrorist state, 49 Fed. Reg. 2836-02 (Jan. 23, 1984); and the President imposed monetary sanctions on Iran, Exec. Order No. 13,599, 77 Fed. Reg. 6659 (Feb. 5, 2012). And, finally, in “[e]nacting the FSIA in 1976, Congress transferred from the Executive to the courts the principal responsibility for determining a foreign state’s amenability to suit.” Bank Markazi, 136 S. Ct. at 1329.

19a ownership to be subject to execution of that judgment.” H.R. Rep. No. 11-447, at 1001 (2007) (Conf. Rep.). The bill, it continued, “is written to subject any property in-terest in which the foreign state enjoys a beneficial own-ership to attachment and execution.” Id. We have al-ready noted that the basic purpose of adding § 1610(g) was to enable plaintiffs who have established a foreign state’s liability under § 1605A and its predecessor, for terrorist acts, to collect on their judgments. As Senator Lautenberg put it, the bill was meant “to facilitate vic-tims’ collection of their damages from state sponsors of terrorism.” 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). Our interpretation of § 1610(g) more fully furthers that fundamental aim.

Bank Melli also makes three other arguments regard-ing § 1610(g). We can dispose of those arguments easily.

(1) The district court’s failure to discuss expressly whether to grant Bank Melli discretionary relief under the “innocent party” provision of § 1610(g)(3) does not mean that the court failed to consider whether that pro-vision applied. Bank Melli made its § 1610(g)(3) argu-ment to the district court, and we presume that the court understood its authority but declined to exercise discre-tion in Bank Melli’s favor. Cf. United States v. Davis, 264 F.3d 813, 816-817 (9th Cir. 2001) (so holding in the context of a district court’s silence regarding a requested downward departure under the United States Sentencing Guidelines).

(2) There is no conflict between § 1610(g) and the 1955 Treaty of Amity between the United States and Iran, which requires that the United States respect the juridi-cal status of Iranian companies, protect their property in accordance with international law, and not discriminate against them. Treaty of Amity, Economic Relations and

20a Consular Rights Between the United States of America and Iran, Aug. 15, 1955, 8 U.S.T. 899, 902-903. As the Second Circuit held, that treaty provision is intended simply to ensure that foreign corporations are on equal footing with domestic corporations. Weinstein, 609 F.3d at 53. Even if the two provisions were inconsistent, when a treaty and a later-enacted federal statute conflict, the subsequent statute controls to the extent of the conflict. Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam).

(3) Allowing the Heiser plaintiffs to obtain relief un-der § 1610(g) by converting their § 1605(a)(7) judgment to a § 1605A judgment does not violate separation of powers principles. Bank Melli’s reliance on Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995), is misplaced. There, the court held that Congress could not require federal courts to reopen final judgments. But here, the judg-ment was not reopened. Instead, the Heiser plaintiffs have a new collection tool; they can enforce their final judgment against Iran by attaching and executing on the property of Iran’s instrumentality. In essence, the stat-ute gives more effect to the final judgment, rather than attempting to revise or rescind that judgment.

B. The statutes do not impermissibly impose retroactive liability.

Bank Melli next argues that the judgment creditors cannot use TRIA § 201(a) or FSIA § 1610(g) because the terrorist acts that underlie the judgments occurred be-fore the enactment of those statutes. The general default rule is that a law that increases substantive liability for past conduct does not operate retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).

But the statutes do not impose new liability on Iran. Section 1605(a)(7) was in effect at the time of the terror-ist acts in question. Rather, the statutes simply permit

21a additional methods of collection. See id. at 275 (noting that the default rule does not apply to rules of procedure because of “diminished reliance interests”).

Even if TRIA § 201(a) and FSIA § 1610(g) are viewed as imposing new liability retroactively, the default rule is different for statutes that govern foreign sovereign im-munity. In Altmann, 541 U.S. at 692, the Supreme Court concluded that the Landgraf presumption does not apply to such statutes. To the contrary, when it comes to sov-ereign immunity for both foreign states and their agen-cies and instrumentalities, there is a presumption in fa-vor of retroactivity “absent contraindications” from Con-gress. Id. at 696.

Here, there are no such contraindications. In fact, the opposite is true. The purpose of the statutes at issue was to enable not just future litigants, but also current judg-ment creditors to collect on the final judgments that they already held—which, as a matter of logic, arose from past acts. Congress chose to make TRIA § 201(a) applicable in “every case in which a person has obtained a judgment” under either the former statute, § 1605(a)(7), or the cur-rent statute, § 1605A. TRIA § 201(a) (emphases added). Similarly, Congress chose to make § 1610(g) applicable to all judgments entered under § 1605A. Accordingly, these statutes apply even if they are seen as imposing liability retroactively, because Congress so intended.

C. The blocked assets are property of Bank Melli. Bank Melli also contends that TRIA § 201(a) and FSIA

§ 1610(g) do not permit attachment of the assets here be-cause Visa and Franklin own the blocked assets; Bank Melli does not. Under TRIA § 201(a), to be subject to ex-ecution or attachment, the blocked assets must be “assets of ” the instrumentality. Similarly, § 1610(g) applies to “the property of ” the instrumentality.

22a Like most courts, we look to state law to determine

the ownership of assets in this context. Peterson, 627 F.3d at 1130-1131; see also Calderon-Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 1000-1001 (2d Cir. 2014) (look-ing to New York law to determine what type of interest rendered property attachable under § 1610(g)), cert. de-nied, 136 S. Ct. 893 (2016); Walker Int’l Holdings, Ltd. v. Republic of Congo, 415 F.3d 413, 415 (5th Cir. 2005) (ap-plying Texas law to determine attorney fees award in FSIA action); Hegna v. Islamic Republic of Iran, 380 F.3d 1000, 1007 (7th Cir. 2004) (applying Illinois law to decide whether property interest was open to challenge in action under FSIA); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (“Per-tamina”), 313 F.3d 70, 83 (2d Cir. 2002) (applying New York law to determine what actions are subject to en-forcement and available to judgment creditors). Here, California law applies. As we held in Peterson, California law authorizes a court to order a judgment debtor to as-sign to the judgment creditor a right to payments that are due or will become due, even if the right is condi-tioned on future developments. 627 F.3d at 1130-1131; Cal. Civ. Proc. Code § 482.080(a)(2) (providing that a court may order a defendant subject to a writ of attach-ment to turn over either “evidence of title to property of or a debt owed to the defendant”); id. at § 680.310 (“ ‘Property’ includes real and personal property and any interest therein.”); id. at § 708.210 (permitting a judg-ment creditor to bring an action against a third party to whom the judgment debtor owes money “to have the in-terest or debt applied to the satisfaction of the money judgment”); id. at § 708.510(a) (authorizing a court to “order the judgment debtor to assign to the judgment creditor . . . all or part of a right to payment due”). That is precisely the situation in the present case: Bank Melli

23a has a contractual right to obtain payments from Visa and Franklin. Under California law, those assets are prop-erty of Bank Melli and may be assigned to judgment creditors.

But even if federal law should govern this question, see Heiser v. Islamic Republic of Iran, 735 F.3d 934, 940 (D.C. Cir. 2013) (creating federal rule of decision to in-terpret ownership requirements in FSIA, based in part on U.C.C. Article 4A and common law principles), Bank Melli would not succeed. Federal law and California law are aligned.

First, we note that Congress has used expansive word-ing to suggest that immediate and outright ownership of assets is not required. In the TRIA, Congress provided that “[n]othing in this subsection shall bar . . . enforce-ment of any judgment to which this subsection applies . . . against assets otherwise available under this section or under any other provision of law.” TRIA § 201(d)(4) (emphasis added). In FSIA § 1610(g), Congress specified that “the property of a foreign state against which a judgment is entered under section 1605A, and the proper-ty of an agency or instrumentality of such a state, in-cluding property that is a separate juridical entity or is an interest held directly or indirectly in a separate jurid-ical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section.” (Emphases added.) Thus, interests held by the instrumentality of a terrorist state, as is the case here, are subject to attachment under federal law.

Second, in Heiser, only foreign nationals, and not a foreign country, had an interest in the blocked funds held by intermediary banks. “Iranian entities were not the originators of the funds transfers. Nor were they the ul-timate beneficiaries.” Heiser, 735 F.3d at 936 (footnote

24a omitted). By contrast, here, Bank Melli is the ultimate beneficiary; Visa and Franklin owe money to Bank Melli for services rendered pursuant to an agreement between them. Accordingly, Bank Melli has an interest in the blocked assets.

In summary, California law applies. Under California law, money owed to Bank Melli may be assigned to judg-ment creditors. Even if federal law applies, under the Heiser court’s rationale, attachment and execution are allowed here because Bank Melli is the intended con-tractual beneficiary of the contested funds.

D. Because Bank Melli does not enjoy sovereign immunity, Rule 19 presents no barrier.

Finally, Bank Melli relies on Federal Rule of Civil Procedure 19 to support its request for dismissal. That rule provides that a person must be joined as a party if the person “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may . . . impair or impede the person’s ability to protect the interest.” Fed. R. Civ. P. 19(a). And, if the “person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dis-missed.” Fed. R. Civ. P. 19(b).

Bank Melli argues that this case must be dismissed because it is a required party that cannot be joined and, further, that the action cannot proceed without it “in equity and good conscience.” But, because TRIA § 201(a) and FSIA § 1610(g) confer jurisdiction by creating excep-tions to sovereign immunity, Bank Melli can be joined in this action. Thus it does not matter whether Bank Melli is otherwise a required party under Rule 19(a); dismissal is not required. See 28 U.S.C. § 1330 (providing jurisdic-

25a tion over a foreign state or its instrumentality when it is not entitled to immunity); Weinstein, 609 F.3d at 49-50 (holding that TRIA § 201(a) removes jurisdictional im-munity, as well as immunity from attachment and execu-tion).8

According to Bank Melli, Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008), requires dismissal. We disagree. A class of victims of human rights abuses in the Republic of the Philippines won a $2 billion default judg-ment against the Estate of Ferdinand Marcos, the for-mer president of that country. Id. at 857-858. The class attempted to enforce the judgment by attaching assets owed to Merrill Lynch by a bank incorporated by Marcos personally. Id. at 858. The Philippines claimed owner-ship of the bank, and therefore the disputed assets, be-cause the bank had been incorporated through a misuse of public office. Id. The Philippines also claimed immun-ity from the suit. Id. Merrill Lynch initiated an inter-pleader action naming, among other parties, the Republic of the Philippines and one of its agencies. Id. at 845-855. The Supreme Court held that the case should be dis-missed because “it was improper [for the district court] to issue a definitive holding regarding a nonfrivolous, substantive claim made by an absent, required entity

8 Bank Melli’s citations to Ministry of Defense & Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 385 F.3d 1206 (9th Cir. 2004), vacated and remanded on other grounds sub nom. Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006) (per curiam); and Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010), are inapposite. Neither of those cases addressed the question whether TRIA § 201(a) or FSIA § 1610(g) confers jurisdiction when property owned by a terrorist state’s instrumentality is subject to execution in satisfaction of judgments entered against that terrorist state.

26a that was entitled by its sovereign status to immunity from suit.” Id. at 868.

This case plainly is distinguishable. In Pimentel, the Republic was a required party that could not be joined because of sovereign immunity. Here, Bank Melli does not enjoy sovereign immunity, so it can be joined as a party, whether or not it is a required party. Unlike the Republic in Pimentel, therefore, Bank Melli is able to ad-judicate its claim to the contested assets.

CONCLUSION

We hold: (1) TRIA §201(a) and FSIA § 1610(g) author-ize attachment and execution of the monies owed to Bank Melli. (2) Those statutes do not impose liability retroac-tively but, even if they are viewed as doing so, Altmann establishes a presumption in favor of retroactivity for statutes governing sovereign immunity, which is not re-butted here. (3) California law governs the ownership question; the blocked assets are property of Bank Melli under principles of California law and, thus, are subject to attachment and execution under TRIA § 201(a) and FSIA § 1610(g). The same result would obtain even if federal law governed. (4) Because Bank Melli can be joined in this action, the dismissal provision of Federal Rule of Civil Procedure 19 does not apply.

AFFIRMED.

27a BENSON, Senior District Judge, concurring in part

and dissenting in part:

I concur with the majority that § 201(a) of the Terror-ism Risk Insurance Act (“TRIA”) and § 1610 of the For-eign Sovereign Immunities Act (“FSIA”) permit the judgment creditors in this case to attach and execute against monies owed to Bank Melli. However, I respect-fully believe the majority erred in finding § 1610(g) to be a freestanding immunity exception under FSIA. In my view, judgment creditors relying on § 1610(g) are able to proceed, regardless of Bank Melli’s sovereign immunity, because the judgment creditors have sufficiently alleged Bank Melli is engaged in commerce in the United States within the meaning of § 1610(b)(3) of FSIA.

FSIA contains “extensive procedural protections for foreign sovereigns in United States courts.” Wyatt v. Syrian Arab Republic, 800 F.3d 331, 333 (7th Cir. 2015). Specifically, § 1609 of FSIA provides a general presump-tion that property of a foreign state and the property of an instrumentality or agency of a foreign state is immune from execution and attachment in United States courts. See 28 U.S.C. § 1609; 28 U.S.C. § 1603(a). In turn, § 1610 provides a series of exceptions to this general rule.

Prior to 2008, § 1610 provided different rules for at-tachment immunity depending on whether the party was seeking immunity as the foreign state or as an agency or instrumentality of a foreign state. Regarding foreign states, § 1610(a) denied immunity where: (1) a judgment creditor obtained a judgment against the foreign state; (2) the property of the foreign state is located in the United States; (3) the property is used for “a commercial activity” in the United States; and (4) one of § 1610(a)’s seven avenues for abrogating immunity applied. See 28 U.S.C. § 1610(a). Similarly, with respect to agencies and

28a instrumentalities, § 1610(b) denied immunity where: (1) a judgment creditor obtained a judgment against an agen-cy or instrumentality of foreign state; (2) the agency or instrumentality is engaged in commercial activity in the United States; (3) the property of the agency or instru-mentality is located in the United States; and (4) one of § 1610(b)’s three avenues for abrogating immunity ap-plied. See 28 U.S.C. § 1610(b).

Prior to 2008, the judgment creditors in this case would have been required to obtain a judgment against Bank Melli to utilize the immunity waiver provisions un-der § 1610(b) to attach Bank Melli’s property.

In 2008, Congress amended FSIA, adding § 1610(g) and § 1605A. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, §1083, 122 Stat. 3, 338 (2008). The purpose of the amendments was to relax the protections of § 1610 in cases of state sponsored ter-rorism to “make it easier for terrorism victims to obtain judgments and to attach assets.” Gates v. Syrian Arab Republic, 755 F.3d 568, 576 (7th Cir. 2014); In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 62 (D.D.C. 2009) (noting, “these latest additions to . . . FSIA demonstrate that Congress remains focused on eliminat-ing those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judgments against Iran or other state sponsors of terrorism”).

Under § 1610(g), if a judgment creditor obtains a judgment under § 1605A, the property of the foreign state and “the property of an agency or instrumentality of such a state, including property that is a separate ju-ridical entity . . . is subject to attachment . . . and execu-tion, upon that judgment as provided in this section, re-gardless” of five factors. 28 U.S.C. § 1610(g)(1) (emphasis added). The five factors enumerated in § 1610(g)(A)

29a through (E) reflect the Bancec presumption, which re-quires this Court to treat government entities estab-lished as separate juridical entities distinct from their sovereigns. See First Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 620-621 (1983); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071 n.9 (9th Cir. 2009) (outlining the Bancec factors (citing Walter Fuller Aircraft Sales, Inc. v. Republic of the Phil-ippines, 965 F.2d 1375, 1380 n.7 (5th Cir. 1992))).

Section 1610(g) leads to two straightforward conclu-sions under FSIA. First, if a party obtains a § 1605A judgment against a state sponsor of terror, the Bancec presumption is eliminated, which permits a court to at-tach and execute against the property of the agency or instrumentality to satisfy the judgments against the for-eign state. See Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429, 442 (D.D.C. 2012) (“Section § 1610(g) subparagraphs (A)-(E) explicitly prohibit con-sideration of each of the five Bancec factors.”), aff ’d sub nom. Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013). Second, the language “as provided in this section” requires a judgment creditor to find an ex-isting mechanism of attachment under § 1610. Section 1610(g) does not create a new avenue for attachment un-der FSIA; rather, § 1610(g) broadens the force of § 1610’s existing avenues for attachment by eliminating the legal fiction that Bank Melli is a separate juridical entity from Iran.

In this case, judgment creditors relying on § 1610(g) may proceed to attach Bank Melli’s property because Bank Melli’s property is not immune from attachment by virtue of § 1610(b)(3). Section 1610(b)(3) eliminates at-tachment immunity if an agency or instrumentality is “engaged in commercial activity in the United States”

30a and “the judgment relates to a claim for which the agen-cy or instrumentality is not immune by virtue of section 1605A of this chapter . . . regardless of whether the prop-erty is or was involved in the act upon which the claim is based.” 28 U.S.C. § 1610(b)(3). The judgment creditors can attach Bank Melli’s property because: (1) the judg-ment creditors have obtained a judgment against Iran pursuant to § 1605A; (2) § 1610(g) eliminates the Bancec presumption, allowing this Court to attach and execute against Bank Melli’s assets to satisfy the judgment against Iran; and (3) the judgment creditors have suffi-ciently ple[d] that Bank Melli is engaged in commercial activity in the United States.

Section 1603(c) of FSIA defines commercial activity as: “either a regular course of commercial conduct or a particular commercial transaction or act. The commer-cial character of an activity shall be determined by refer-ence to the nature of the course of conduct or particular transaction or act, rather than by reference to its pur-pose.” 28 U.S.C. § 1603(c) (emphasis added). Bank Melli entered into a contract with an American company to provide an American company a commercial service. [ER, p. 82-83, ¶ 2 ; ER, p. 64, ¶ 16 (“Visa holds the Blocked Assets, funds due and owing by contract to Bank Melli pursuant to a commercial relationship with that bank . . . ”).] At this stage in the litigation, the Court can conclude that the judgment creditors relying on § 1610(g) have sufficiently alleged Bank Melli is engaged in com-mercial activity in the United States.

The majority disagrees with the aforementioned in-terpretation and concludes that § 1610(g) creates a free-standing immunity exception under FSIA. The majority believes a § 1605A judgment creditor may attach Bank Melli’s property regardless of any commercial component

31a under § 1610(a) or § 1610(b). In my view, respectfully, the majority misses the mark in three important respects.

First, the majority erroneously finds that § 1610(g) is a freestanding exception to immunity by concluding:

Subsection (g) covers a different subject than § 1610(a) through (e): by its express terms, it ap-plies only to ‘certain actions,’ specifically, judg-ments ‘entered under section 1605A.’ (Emphasis added.) In turn, § 1605A revokes sovereign immun-ity for damages claims against a foreign state for personal injury or death caused by ‘torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support’ for such an act. By definition, such claims do not arise from com-mercial activity; they arise from acts of torture (and the like).

[Maj. Op., p. 17.] In doing so, the majority misinterprets the operation of § 1610(a) and (b) waivers in the context of § 1605A judgments. Under §1610(b)(3), a judgment creditor can attach property where the instrumentality is engaged in commercial activity in the United States. Furthermore, § 1610(b)(3) provides that attachment im-munity is eliminated “regardless of whether the property is or was involved with the act upon which the claim is based.” 28 U.S.C. § 1610(b)(3) (emphasis added). There-fore, a § 1605A judgment allows a judgment creditor to get immunity waived for any property where the instru-mentality is engaged in commerce in the United States, regardless whether the property was involved in the ac-tions that gave rise to the § 1605A waiver of immunity against the foreign state. Therefore, Bank Melli’s prop-erty does not need to be involved in terrorism to abro-gate attachment immunity under § 1610(b)(3).

32a Second, the majority concludes that the “as provided

in this section” language found in § 1610(g) refers to the procedural aspects of § 1610, namely § 1610(f ). Fair enough. But, the majority’s conclusion does not mean the language “as provided in this section” refers only to § 1610(f ). Indeed, the majority’s piecemeal reading of § 1610(g) renders other portions of § 1610 inoperable. “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. An-drews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). This Court should adopt the in-terpretation of § 1610 that “ ‘ gives effect to every clause and word.’ ” Marx v. Gen. Revenue Corp., ___ U.S. ___, 133 S. Ct. 1166, 1177 (2013) (citing Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91 (2011)).

The majority ignores the avenues for exemption under § 1610(a)(7) and § 1610(b)(3). Section 1610(a)(7) and § 1610(b)(3) provide immunity, in addition to requiring some interplay with commerce, where “the judgment re-lates to a claim for which the foreign state is not immune under section 1605A . . . .” If a § 1605A judgment creditor can waive attachment immunity under § 1610(g) without proving the property is used in commerce or the instru-mentality is engaged in commerce in the United States, § 1610(a)(7) and § 1610(b)(3) are rendered superfluous and obsolete. Conversely, recognizing § 1610(g)’s limited purpose was to eliminate the Bancec presumption en-sures this Court gives effect to every clause and word in § 1610 while honoring the purpose of the 2008 FSIA amendments.

Finally, the majority’s holding ignores the practical limitation the commerce requirement places on § 1605A

33a judgments. Reading § 1610(g) as a freestanding immuni-ty exception does not just relax FSIA in the context of terrorism—it eliminates any immunity protection under FSIA for state sponsors of terror and their instrumental-ities. For example, in Rubin v. Islamic Republic of Iran, American citizens sued and obtained default judgments against Iran for injuries and losses that arose out of a su-icide bombing carried out by Hamas in Israel. 33 F. Supp. 3d 1003, 1006 (N.D. Ill. 2014). The Rubin plaintiffs sought to “attach and execute on numerous ancient Per-sian artifacts” in possession of two museums in the Unit-ed States to satisfy their default judgments against Iran. Id. Like the judgment creditors in this case, the Rubin plaintiffs argued that § 1610(g) is a freestanding immuni-ty exception and, therefore, the plaintiffs may attach Iran’s artifacts to satisfy their judgments. Id. at 1013.

The court disagreed, finding: “ The plain language in-dicates that Section 1610(g) is not a separate basis of at-tachment, but rather qualifies the previous subsections.” Id. The court concluded, “the purpose of Section 1610(g) is to counteract the Supreme Court’s decision in Bancec, and to allow execution against the assets of separate ju-ridical entities regardless of the protections Bancec may have offered.” Id. Currently, the Rubin case is pending appeal in the Seventh Circuit. Rubin v. Islamic Republic of Iran, 33 F. Supp. 3d 1003 (N.D. Ill. 2014), appeal dock-eted, No. 14-1935 (7th Cir. Apr. 25, 2014).

Surely this Court’s holding will be argued as prece-dent to allow the Rubin plaintiffs to seize Persian arti-facts to be auctioned off to satisfy the Rubin plaintiffs’ default judgments. This would be an unjustified and un-fortunate result. When Congress amended FSIA, the in-tention was to eliminate the Bancec presumption and re-lax the rigidity of § 1610 to make it easier for victims of

34a terrorism to satisfy judgments against state sponsors of terror. Congress did not, however, intend to open the floodgates and allow terrorism plaintiffs to attach any and all Iranian property in the United States. Rather, Congress intended the commerce limitation to remain in place.1 If a foreign state is designated as a state sponsor of terror, the state and the instrumentalities and agen-cies of the state lose the privilege of doing business in the United States without running the risk of property being seized to satisfy judgments.

In sum, I would require judgment creditors relying on § 1610(g) to satisfy one of § 1610’s existing avenues for abrogating attachment immunity. In this case, the judg-ment creditors have done that. The judgment creditors have sufficiently alleged Bank Melli is engaged in com-merce in the United States within the meaning of § 1610(b)(3).

1 TRIA § 201 similarly contains a limitation on attachment and execu-tion. TRIA § 201 requires attachable assets to be defined as “blocked assets.” Section 201(d)(2)(A) defines a “blocked asset” as any asset “seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act (50 U.S.C. App. 5(b)) or under sec-tions 202 and 203 of the International Emergency Economic Powers Act (50 U.S.C. 1701; 1702).”

35a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———— DOCKET NOS. 13-15442, 13-16100

———— MICHAEL BENNETT; LINDA BENNETT,

AS CO-ADMINISTRATORS OF THE ESTATE OF MARIA ANN BENNETT,

Plaintiffs-Appellees,

v.

THE ISLAMIC REPUBLIC OF IRAN, Defendant,

v.

VISA INC.; FRANKLIN RESOURCES, INC.,

Defendants-third-party-plaintiffs–Appellees,

v.

GREENBERG AND ACOSTA JUDGMENT CREDITORS,

Plaintiff-third-party-defendant–Appellee,

HEISER JUDGMENT CREDITORS,

Plaintiff-fourth-party-defendant–Appellee,

v.

BANK MELLI,

Plaintiff-third-party-defendant–Appellant.

36a ————

ORDER AND AMENDED OPINION ————

February 22, 2016

————

Appeals from the United States District Court for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

————

Argued and Submitted April 15, 2015—San Francisco, California

————

Before: Sidney R. Thomas,* and Susan P. Graber, Circuit Judges, and Dee V. Benson,** Senior District Judge.

————

Opinion by Judge Graber; Partial Concurrence and Partial Dissent by

Judge Benson

————

ORDER

The opinion filed August 26, 2015, and reported at 799 F.3d 1281, is withdrawn. Because the court’s opinion is withdrawn, Appellant Bank Melli’s petition for panel re-hearing and petition for rehearing en banc is moot. A superseding opinion will be filed concurrently with this

* Chief Judge Thomas was drawn to replace Judge Kozinski. He has read the briefs, reviewed the record, and listened to the audio-recording of oral argument held on April 15, 2015. ** The Honorable Dee V. Benson, Senior District Judge for the U.S. District Court for the District of Utah, sitting by designation.

37a order. Further petitions for rehearing and petitions for rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge:

Approximately 90 United States citizens (or the repre-sentatives of their estates) are attempting to collect on unsatisfied money judgments that they hold against the Islamic Republic of Iran for deaths and injuries suffered in terrorist attacks sponsored by Iran. The assets that are the subject of this interpleader action are monies con-tractually owed to Bank Melli by Visa Inc. and Franklin Resources Inc. (“Franklin”). Bank Melli is an instrumen-tality of Iran. It asserts that Plaintiffs cannot execute on the assets (1) because Bank Melli enjoys sovereign im-munity under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), (2) because the relevant statutory excep-tions to sovereign immunity may not be applied retro-actively, (3) because the blocked assets are not property of Bank Melli, and (4) because Bank Melli is a required party that cannot be joined, thus requiring dismissal un-der Federal Rule of Civil Procedure 19. We disagree and, accordingly, affirm the judgment of the district court.

BACKGROUND LEGAL PRINCIPLES The jurisdiction of the United States over persons and

property within its territory “is susceptible of no limita-tion not imposed by itself.” Schooner Exch. v. Mc-Faddon, 11 U.S. (7 Cranch) 116, 136 (1812). Accordingly, foreign sovereign immunity is “a matter of grace and comity rather than a constitutional requirement.” Re-public of Austria v. Altmann, 541 U.S. 677, 689 (2004). Courts consistently “defer[ ] to the decisions of the politi-cal branches” on whether to take actions against foreign sovereigns and their instrumentalities. Id. (quoting Ver-

38a linden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)).

The FSIA, 28 U.S.C. §§ 1330, 1602-1611, establishes a default rule that foreign states are immune from suit in United States courts. Id. at § 1604. Congress enacted the statute to provide a “comprehensive . . . ‘set of legal standards governing claims of immunity in every civil ac-tion against a foreign state or its political subdivisions, agencies, or instrumentalities.’ ” Altmann, 541 U.S. at 691 (quoting Verlinden B.V., 461 U.S. at 488). The FSIA provides the exclusive vehicle for subject matter jurisdic-tion in all civil actions against foreign state defendants. OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 393 (2015); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1069 (9th Cir. 2002).

The FSIA includes many exceptions to its general rule of immunity. 28 U.S.C. §§ 1605-1607. Relevant here, in 1996, Congress added a new exception, stripping a for-eign state of its sovereign immunity when (1) the United States officially designates the foreign state a state spon-sor of terrorism and (2) the foreign state is sued “for per-sonal injury or death that was caused by an act of tor-ture, extrajudicial killing, aircraft sabotage, hostage tak-ing, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605.

Iran was designated a terrorist party pursuant to sec-tion 6(j) of the Export Administration Act of 1979, 50 U.S.C. app. § 2405(j) (effective Jan. 19, 1984). Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1123 (9th Cir. 2010); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 48 (2d Cir. 2010). That designation means that Iran is not entitled to sovereign immunity for claims under § 1605A.

39a Separately, the FSIA addresses the immunity of sov-

ereign property from execution and attachment. Subject to enumerated exceptions, a foreign state’s property in the United States is immune from attachment and execu-tion. 28 U.S.C. § 1609.

In First National City Bank v. Banco Para el Comer-cio Exterior de Cuba (“Bancec”), 462 U.S. 611, 620-621 (1983), the Supreme Court concluded that the FSIA did not control whether and to what extent instrumentalities could be held liable for the debts of their sovereigns. Applying international law and federal common law, the Court held that “government instrumentalities estab-lished as juridical entities distinct and independent from their sovereign should normally be treated as such.” Id. at 626-627. That rule, referred to as the “Bancec pre-sumption,” may be overcome only in limited circum-stances. Id. at 628-634. The federal courts later de-scribed five “Bancec factors” that may be considered in determining whether the presumption has been over-come in any given case. E.g., Flatow, 308 F.3d at 1071 n.9.1

1 The five factors are:

(1) the level of economic control by the government; (2) whether the entity’s profits go to the government; (3) the degree to which government officials manage the entity or

otherwise have a hand in its daily affairs; (4) whether the government is the real beneficiary of the entity’s

conduct; and (5) whether adherence to separate identities would entitle the

foreign state to benefits in United States courts while avoid-ing its obligations.

Flatow, 308 F.3d at 1071 n.9 (quoting Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375, 1380 n.7 (5th Cir. 1992)).

40a Even after Congress added § 1605(a)(7) (now § 1605A)

to the FSIA in 1996, successful plaintiffs struggled to en-force judgments against Iran when they were harmed by its terrorist activities. See, e.g., In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 49-58 (D.D.C. 2009) (describing “The Never-Ending Struggle to En-force Judgments Against Iran”). Once again, Congress responded by enacting new statutes, this time designed to facilitate the satisfaction of such judgments by expand-ing successful plaintiffs’ ability to attach and execute on the property of agencies and instrumentalities of terror-ist states.

First, in 2002 Congress enacted the Terrorism Risk Insurance Act of 2002 (“TRIA”), Pub. L. No. 107-297, 116 Stat. 2322. Section 201(a) of the TRIA provides:

Notwithstanding any other provision of law, and ex-cept as provided in subsection (b) [of this note, per-taining to Presidential waiver], in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of ter-rorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) . . . , the blocked assets[2] of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

TRIA § 201(a) was codified as a statutory note to 28 U.S.C. § 1610 on “Treatment of Terrorist Assets.”

2 The term “blocked assets” refers generally to assets that have been seized or frozen by the United States. TRIA § 201(d)(2)(A).

41a Second, in 2008, Congress amended the FSIA as part

of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338. Among other changes, Congress added a new subsection to the FSIA, which provides in part that

the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judg-ment as provided in this section, regardless of [the same five factors described by the federal courts as the “Bancec factors”].

28 U.S.C. § 1610(g)(1). For ease of reference, we refer to this section as “FSIA § 1610(g).”

FACTUAL AND PROCEDURAL HISTORY Four groups of individuals sued the Islamic Republic

of Iran for damages arising from deaths and injuries suf-fered in terrorist attacks sponsored by Iran; in each case, a final money judgment was entered in favor of the plain-tiffs and against Iran. In Estate of Heiser v. Islamic Re-public of Iran, 659 F. Supp. 2d 20 (D.D.C. 2009), and Es-tate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006), the plaintiffs secured judgments for more than $590 million for the 1996 bombing of the Kho-bar Towers in Saudi Arabia. In Acosta v. Islamic Repub-lic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008), the plain-tiffs received a judgment of more than $350 million be-cause of a 1990 mass shooting. In Bennett v. Islamic Re-public of Iran, 507 F. Supp. 2d 117 (D.D.C. 2007), the plaintiffs obtained a judgment for damages of nearly $13 million for Iran’s role in the 2002 bombing of a cafeteria

42a at Hebrew University in Jerusalem. And in Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (D.D.C. 2006), the plaintiffs were awarded almost $20 million for damages suffered as a result of the bombing of a Jerusa-lem restaurant in 2001. Collectively, the judgments total nearly $1 billion. Although all the judgments were taken by default, it is undisputed that all are valid final judg-ments and that Iran owes the amounts of those judg-ments to the respective plaintiffs.

Bank Melli, Iran’s largest financial institution, is whol-ly owned by the government of Iran. It is undisputed that Bank Melli qualifies as an instrumentality of Iran under the FSIA. Bank Melli was not named as a defend-ant in any of the four cases described above and was not itself alleged to have been involved in the underlying ter-rorist events. On October 25, 2007, the United States Department of the Treasury, Office of Foreign Assets Control exercised its authority under Executive Order No. 13,382, 70 Fed. Reg. 38,567 (June 28, 2005), to block Bank Melli’s assets in the United States because of its in-volvement in Iran’s nuclear and missile industries. Bank Melli’s assets also are blocked pursuant to a 2012 Execu-tive Order blocking the property of Iran and of Iranian financial institutions. Executive Order No. 13,599, 77 Fed. Reg. 6659 (Feb. 8, 2012).3

Visa and Franklin owe about $17.6 million to Bank Melli pursuant to a commercial relationship that involves the use of Visa credit cards in Iran. Visa and Franklin have not turned the funds over to Bank Melli only be-cause the funds are blocked. The Bennett judgment creditors filed a complaint against Visa and Franklin, 3 The recent lifting of a portion of the sanctions imposed on Iran does not render this interpleader action moot, nor does it affect our analy-sis of the issues raised here.

43a seeking to attach and execute against the blocked assets. Visa and Franklin responded by initiating this inter-pleader action, naming as defendants Bank Melli and the three other sets of judgment creditors. Visa and Frank-lin sought a determination of the rights to the blocked as-sets in their possession and a discharge of Visa and Franklin with regard to those assets. After Bank Melli entered its appearance, it moved to dismiss the action.

Bank Melli made four arguments for dismissal, each of which the district court rejected. The court held: (1) TRIA § 201(a) and FSIA § 1610(g) enable the judg-ment creditors to attach the monies owed to Bank Melli; (2) TRIA §201(a) and FSIA § 1610(g) do not impose ret-roactive liability; (3) the blocked assets constitute proper-ty of Bank Melli; and (4) Bank Melli was not a required party under Federal Rule of Civil Procedure 19. Bennett v. Islamic Republic of Iran, 927 F. Supp. 2d 833 (N.D. Cal. 2013). The district court denied the motion to dis-miss and certified the order for interlocutory appeal un-der 28 U.S.C. § 1292(b). Bennett, 927 F. Supp. 2d at 845-846.

STANDARD OF REVIEW We review de novo: questions of statutory construc-

tion, Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012); a district court’s ruling on a motion to dismiss for failure to state a claim or for lack of subject matter juris-diction, Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011); the question whether a statute may be applied retroactively, Scott v. Boos, 215 F.3d 940, 942 (9th Cir. 2000); and legal determinations underlying a district court’s decision whether an action can proceed in the absence of a required party under Rule 19, Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996).

44a

DISCUSSION A. TRIA § 201(a) and FSIA § 1610(g) permit at-

tachment and execution of the monies owed to Bank Melli. 1. TRIA § 201(a)

We hold that TRIA § 201(a) permits judgment credi-tors to attach assets held by the instrumentalities of state sponsors of terrorism. As always, when interpreting a statute, we begin with its text. Metro One Telecomms., Inc. v. Comm’r, 704 F.3d 1057, 1061 (9th Cir. 2012). Sec-tion 201(a) of the TRIA applies “[n]otwithstanding any other provision of law,” “in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a ter-rorist party is not immune under section 1605A or 1605(a)(7),” and “in order to satisfy such judgment to the extent of any compensatory damages for which such ter-rorist party has been adjudged liable.” TRIA § 201(a) (emphases added). The statute provides that, in cases such as this one, “the blocked assets of [the] terrorist party (including the blocked assets of any agency or in-strumentality of that terrorist party) shall be subject to execution or attachment in aid of execution.” Id. (empha-sis added). This wording demonstrates that Congress knew that the blocked assets of an instrumentality might otherwise have been excluded from the phrase “blocked assets of [the] terrorist party” and that Congress acted to ensure that, instead, the instrumentality’s blocked as-sets were included. Cf. Alejandre v. Telefonica Larga Distancia de P.R., Inc. 183 F.3d 1277, 1287-1288, 1287 n.25 (11th Cir. 1999) (stating that a proposed amendment to the FSIA that would have applied to property that “belongs to an agency or instrumentality of a foreign state” demonstrated that Congress “knows how to ex-

45a press clearly an intent to make instrumentalities sub-stantively liable for the debts of their related foreign governments” (internal quotation marks omitted)). Ac-cordingly, we agree with the Second Circuit when it held that it is “clear beyond cavil that Section 201(a) of the TRIA provides courts with subject matter jurisdiction over post-judgment execution and attachment proceed-ings against property held in the hands of an instrumen-tality of the judgment-debtor, even if the instrumentality is not itself named in the judgment.” Weinstein, 609 F.3d at 50.

Bank Melli disputes this reading of § 201(a), arguing instead that it applies only to instrumentalities that are alter egos of the state; that is, Bank Melli argues that the Bancec presumption against the attachment of assets held by state instrumentalities applies. Bank Melli rea-sons that, because “including” is a term of illustration, the words that follow are merely an example of the main preceding principle. That observation is true but is of no assistance to Bank Melli. By listing “the blocked assets of any . . . instrumentality of that terrorist party” as a specific example of assets that are “subject to execution or attachment . . . in order to satisfy” a money judgment obtained under § 1605A or 1605(a)(7), Congress clearly instructed courts to allow the instrumentality’s blocked assets to be reached. Congress also instructed courts to allow these assets to be reached “[n]otwithstanding any other provision of law”—that is, regardless of the usual fiction embodied in Bancec. Congress purposely over-rode the Bancec presumption in this context and abro-gated attachment immunity with respect to the blocked assets of instrumentalities of designated state sponsors of terrorism. Section 201(a) permits the judgment credi-tors to attach the assets of an instrumentality of a state

46a sponsor of terrorism. Accordingly, the blocked assets of Bank Melli that are at issue in this case may be attached.

2. FSIA §1610(g) FSIA § 1610(g) allows attachment of and execution

against property held by a foreign terrorist state’s in-strumentality “that is a separate juridical entity,” “re-gardless of ” five factors. As noted above, those enumer-ated factors are the same five factors identified by the federal courts as the “Bancec factors” that may be used to decide whether an instrumentality is an alter ego un-der Bancec. E.g., Flatow, 308 F.3d at 1071-1072, 1071 n.9. It is clear from the text of the statute that Congress was referring to, and abrogating, not just the presump-tion of separate juridical status, but also Bancec specifi-cally. Therefore, § 1610(g) also permits attachment in this case.

But Bank Melli contends that, because § 1610(g) makes assets subject to attachment and execution only “as provided in this section,” it is not an independent ex-ception to the immunity granted by 28 U.S.C. § 1609. Bank Melli reasons that subsection (g) applies only if some other part of § 1610 provides for attachment and execution. Bank Melli argues that its assets cannot be attached or executed upon because the assets at issue in this case were not “used for a commercial activity in the United States,” a requirement in § 1610(a), and Bank Melli has not itself “engaged in commercial activity in the United States,” a requirement in § 1610(b). We are not persuaded.

We hold that subsection (g) contains a freestanding provision for attaching and executing against assets of a foreign state or its agencies or instrumentalities. Sub-section (g) covers a different subject than § 1610(a) through (e): by its express terms, it applies only to “cer-

47a tain actions,” specifically, judgments “entered under sec-tion 1605A.” (Emphasis added.) In turn, § 1605A re-vokes sovereign immunity for damages claims against a foreign state for personal injury or death caused by “tor-ture, extrajudicial killing, aircraft sabotage, hostage tak-ing, or the provision of material support” for such an act. By definition, such claims do not arise from commercial activity; they arise from acts of torture (and the like). Section 1610(g) requires only that a judgment under § 1605A have been rendered against the foreign state; in that event, both the property of the foreign state and the property of an agency or instrumentality of that state are subject to attachment and execution. See Peterson, 627 F.3d at 1123 n.2 (stating that § 1610(g) “expanded the category of foreign sovereign property that can be at-tached; judgment creditors can now reach any U.S. prop-erty in which Iran has any interest, whereas before they could reach only property belonging to Iran”). To the ex-tent that subsection (g) is inconsistent with subsection (a) or (b), subsection (g) governs because the particular (judgments entered under §1605A) controls over the general (all judgments entered after a certain date). Mo-rales v. Trans World Airlines, Inc., 504 U.S. 374, 384-385 (1992).

When subsection (g) refers to attachment and execu-tion of the judgment “as provided in this section,” it is re-ferring to procedures contained in § 1610(f ).4 Section 1610(f ), like § 1610(g), relates to judgments obtained un-

4 When Congress enacted subsection (g), subsection (f ) already was in place. Subsection (g) was added to the statute in 2008. Pub. L. No. 110-181, div. A, tit. X, § 1083(b)(3), 122 Stat. 3, 341 (2008). Sub-section (f ) was enacted in 1990, when the exceptions to the FSIA were first codified. Pub. L. No. 101-650, tit. III, § 325(b)(9), 104 Stat. 5089, 5121 (1990).

48a der § 1605A and its predecessor, § 1605(a)(7). Subsection (f )(1)(A) permits attachment and execution of property that might otherwise be blocked; subsection (f )(1)(B) prohibits attachment or execution against property of a foreign state that it expropriated from a natural person; and subsection (f )(2)(A) provides that the Secretary of State and Secretary of Treasury will make every effort to assist a court or creditor in locating property awarded pursuant to § 1605A. In light of Congress’ mandate to the executive branch to assist in the collection of judg-ments in such cases, 28 U.S.C. § 1610(f ), we cannot im-pute to Congress an empty statutory gesture. See Gates v. Syrian Arab Republic, 755 F.3d 568, 576 (7th Cir. 2014) (stating that Congress intended the 2008 amend-ments to the FSIA “to make it easier for terrorism vic-tims to obtain judgments and to attach assets”). Given both the text of the statute and Congress’ intention to make it easier for victims of terrorism to recover judg-ments, we hold that § 1610(g) is a freestanding provision for attaching and executing against assets to satisfy a money judgment premised on a foreign state’s act of ter-rorism.

Bank Melli argues, and our colleague agrees, that our reading of § 1610(g) renders § 1610(a)(7) and (b)(3) super-fluous.5 But the tension works in the opposite direction.

5 Our colleague gives two other reasons for disagreeing with us on this point. The first is that § 1610(b)(3) does not require property “to be involved in terrorism to abrogate attachment immunity under § 1610(b)(3).” (Partial dissent at 33.) We do not suggest to the con-trary. The other reason is that it would be “an unjustified and unfor-tunate result,” id. at 9, to allow attachment and execution of non-commercial property, such as museum artifacts belonging to Iran. But it is not our province to decide whether the policy choices em-bodied in a statute are wise or unwise; our task is, rather, to discern

49a If § 1610(g) is interpreted to require that, to be subject to attachment and execution, property must be used by the foreign state for a “commercial activity,” § 1610(a), or that the instrumentality must be “engaged in commercial activity in the United States,” § 1610(b), then we would have to read into § 1610(g) a limitation that Congress did not insert. See United States v. Temple, 105 U.S. (9 Otto) 97, 99 (1881) (holding that the court has “no right to insert words and phrases, so as to incorporate in the statute a new and distinct provision”). Section 1610(g)(1) provides that “the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, . . . is subject to attachment in aid of execution, and execution.” (Emphases added.) Thus, Congress did not limit the type of property subject to attachment and exe-cution under § 1610(g) to property connected to commer-cial activity in the United States. The only requirement is that property be “the property of ” the foreign state or its instrumentality.

Two Seventh Circuit cases support our conclusion in this regard. In Wyatt v. Syrian Arab Republic, 800 F.3d 331, 343 (7th Cir. 2015), the court held that the plaintiffs need not comply with § 1608(e) when proceeding under § 1610(g). The court noted that § 1608(e) is part of a “more general process” applicable to “suits other than those for state-sponsored terrorism, such as more ordi-nary contract or tort cases arising out of a foreign state’s commercial activities.” Id. at 333. Section 1610(g), the court noted, “contains provisions specific to claims for state-sponsored terrorism.” Id. Those specific provi-sions allow plaintiffs with a judgment against a state congressional intent. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).

50a sponsor of terrorism, obtained pursuant to § 1605A, to at-tach and execute the judgment against property of the foreign state and against property of any agency and in-strumentality of the state. Id. The other provisions of § 1610, contained in subsections (a) through (c), establish a general process for judgments against a foreign state not necessarily resting on state-sponsored terrorism. Id.

Similarly, the court held in Gates that a plaintiff pro-ceeding under § 1610(g) need not comply with § 1610(c). The court wrote in part:

Sections 1610(a) and (b) are available to satisfy a wide variety of judgments, but they allow attach-ment of only specific categories of assets to satisfy those judgments. See, e.g., § 1610(a) (allowing at-tachment of foreign state property located in the United States and used for commercial activity there); § 1610(b) (allowing attachment of property of foreign state agency or instrumentality engaged in United States commercial activity).

By contrast, § 1610(g) is available only to holders of judgments under the § 1605A exception for state-sponsored terrorism, but it allows attachment of a much broader range of assets to satisfy those judg-ments.

Gates, 755 F.3d at 576.

Regardless of canons of construction—such as the principle that a specific statute takes precedence over a general one—our ultimate search is for congressional in-tent. Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001). And it is quite clear that Congress meant to ex-pand successful plaintiffs’ options for collecting judg-ments against state sponsors of terrorism.

51a We acknowledge that § 1610 as a whole is ambiguous.

In that circumstance, we may consider legislative history. Id. at 91-92; United States v. Pub. Utils. Comm’n, 345 U.S. 295, 315 (1953). That history suggests that § 1610(g) was meant to allow attachment and execution with re-spect to any property whatsoever of the foreign state or its instrumentality. Senator Lautenberg, one of the sponsors of the bill that became § 1610(g), stated that the provision would “allow[ ] attachment of the assets of a state sponsor of terrorism to be made upon the satisfac-tion of a ‘simple ownership’ test.” 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). The House Conference Report for a substantially similar ear-lier version of the bill noted that the provision “would . . . expand the ability of claimants to seek recourse against the property of that foreign state,” in part “by permitting any property in which the foreign state has a beneficial ownership to be subject to execution of that judgment.” H.R. Rep. No. 11-447, at 1001 (2007) (Conf. Rep.). The bill, it continued, “is written to subject any property in-terest in which the foreign state enjoys a beneficial own-ership to attachment and execution.” Id. We have al-ready noted that the basic purpose of adding § 1610(g) was to enable plaintiffs who have established a foreign state’s liability under § 1605A and its predecessor, for terrorist acts, to collect on their judgments. As Senator Lautenberg put it, the bill was meant “to facilitate vic-tims’ collection of their damages from state sponsors of terrorism.” 154 Cong. Rec. S54-01 (Jan. 22, 2008) (statement of Sen. Lautenberg). Our interpretation of § 1610(g) more fully furthers that fundamental aim.

Bank Melli also makes three other arguments regard-ing § 1610(g). We can dispose of those arguments easily.

52a (1) The district court’s failure to discuss expressly

whether to grant Bank Melli discretionary relief under the “innocent party” provision of § 1610(g)(3) does not mean that the court failed to consider whether that pro-vision applied. Bank Melli made its § 1610(g)(3) argu-ment to the district court, and we presume that the court understood its authority but declined to exercise discre-tion in Bank Melli’s favor. Cf. United States v. Davis, 264 F.3d 813, 816-817 (9th Cir. 2001) (so holding in the context of a district court’s silence regarding a requested downward departure under the Sentencing Guidelines).

(2) There is no conflict between § 1610(g) and the 1955 Treaty of Amity between the United States and Iran, which requires that the United States respect the juridi-cal status of Iranian companies, protect their property in accordance with international law, and not discriminate against them. Treaty of Amity, Economic Relations and Consular Rights Between the United States of America and Iran, Aug. 15, 1955, 8 U.S.T. 899, 902-903. As the Second Circuit held, that treaty provision is intended simply to ensure that foreign corporations are on equal footing with domestic corporations. Weinstein, 609 F.3d at 53. Even if the two provisions were inconsistent, when a treaty and a later-enacted federal statute conflict, the subsequent statute controls to the extent of the conflict. Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam).

(3) Allowing the Heiser plaintiffs to obtain relief un-der § 1610(g) by converting their § 1605(a)(7) judgment to a § 1605A judgment does not violate separation of powers principles. Bank Melli’s reliance on Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995), is misplaced. There, the court held that Congress could not require federal courts to reopen final judgments. But here, the judg-ment was not reopened. Instead, the Heiser plaintiffs

53a have a new collection tool; they can enforce their final judgment against Iran by attaching and executing on the property of Iran’s instrumentality. In essence, the stat-ute gives more effect to the final judgment, rather than attempting to revise or rescind that judgment.

B. The statutes do not impermissibly impose retroactive liability.

Bank Melli next argues that the judgment creditors cannot use TRIA § 201(a) or FSIA § 1610(g) because the terrorist acts that underlie the judgments occurred be-fore the enactment of those statutes. The general default rule is that a law that increases substantive liability for past conduct does not operate retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).

But the statutes do not impose new liability on Iran. Section 1605(a)(7) was in effect at the time of the terror-ist acts in question. Rather, the statutes simply permit additional methods of collection. See id. at 275 (noting that the default rule does not apply to rules of procedure because of “diminished reliance interests”).

Even if TRIA § 201(a) and FSIA § 1610(g) are viewed as imposing new liability retroactively, the default rule is different for statutes that govern foreign sovereign im-munity. In Altmann, 541 U.S. at 692, the Supreme Court concluded that the Landgraf presumption does not apply to such statutes. To the contrary, when it comes to sov-ereign immunity for both foreign states and their agen-cies and instrumentalities, there is a presumption in fa-vor of retroactivity “absent contraindications” from Con-gress. Id. at 696.

Here, there are no such contraindications. In fact, the opposite is true. The purpose of the statutes at issue was to enable not just future litigants, but also current judg-ment creditors to collect on the final judgments that they

54a already held—which, as a matter of logic, arose from past acts. Congress chose to make TRIA § 201(a) applicable in “every case in which a person has obtained a judgment” under either the former statute, § 1605(a)(7), or the cur-rent statute, § 1605A. TRIA § 201(a) (emphases added). Similarly, Congress chose to make § 1610(g) applicable to all judgments entered under § 1605A. Accordingly, these statutes apply even if they are seen as imposing liability retroactively, because Congress so intended.

C. The blocked assets are property of Bank Melli. Bank Melli also contends that TRIA § 201(a) and FSIA

§ 1610(g) do not permit attachment of the assets here be-cause Visa and Franklin own the blocked assets; Bank Melli does not. Under TRIA § 201(a), to be subject to ex-ecution or attachment, the blocked assets must be “assets of ” the instrumentality. Similarly, § 1610(g) applies to “the property of ” the instrumentality.

Like most courts, we look to state law to determine the ownership of assets in this context. Peterson, 627 F.3d at 1130-1131; see also Calderon-Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 1000-1001 (2d Cir. 2014) (look-ing to New York law to determine what type of interest rendered property attachable under § 1610(g)), cert. de-nied, 136 S. Ct. 893 (2016); Walker Int’l Holdings, Ltd. v. Republic of Congo, 415 F.3d 413, 415 (5th Cir. 2005) (ap-plying Texas law to determine attorney fees award in FSIA action); Hegna v. Islamic Republic of Iran, 380 F.3d 1000, 1007 (7th Cir. 2004) (applying Illinois law to decide whether property interest was open to challenge in action under FSIA); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (“Per-tamina”), 313 F.3d 70, 83 (2d Cir. 2002) (applying New York law to determine what actions are subject to en-forcement and available to judgment creditors). Here,

55a California law applies. As we held in Peterson, California law authorizes a court to order a judgment debtor to as-sign to the judgment creditor a right to payments that are due or will become due, even if the right is condi-tioned on future developments. 627 F.3d at 1130-1131; Cal. Civ. Proc. Code § 482.080(a)(2) (providing that a court may order a defendant subject to a writ of attach-ment to turn over either “evidence of title to property of or a debt owed to the defendant”); id. at § 680.310 (“ ‘Property’ includes real and personal property and any interest therein.”); id. at § 708.210 (permitting a judg-ment creditor to bring an action against a third party to whom the judgment debtor owes money “to have the in-terest or debt applied to the satisfaction of the money judgment”); id. at § 708.510(a) (authorizing a court to “order the judgment debtor to assign to the judgment creditor . . . all or part of a right to payment due”). That is precisely the situation in the present case: Bank Melli has a contractual right to obtain payments from Visa and Franklin. Under California law, those assets are prop-erty of Bank Melli and may be assigned to judgment creditors.

But even if federal law should govern this question, see Heiser v. Islamic Republic of Iran, 735 F.3d 934, 940 (D.C. Cir. 2013) (creating federal rule of decision to in-terpret ownership requirements in FSIA, based in part on U.C.C. Article 4A and common law principles), Bank Melli would not succeed. Federal law and California law are aligned.

First, we note that Congress has used expansive word-ing to suggest that immediate and outright ownership of assets is not required. In the TRIA, Congress provided that “[n]othing in this subsection shall bar . . . enforce-ment of any judgment to which this subsection applies . . .

56a against assets otherwise available under this section or under any other provision of law.” TRIA § 201(d)(4) (emphasis added). In § 1610(g), Congress specified that “the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an inter-est held directly or indirectly in a separate juridical enti-ty, is subject to attachment in aid of execution, and exe-cution, upon that judgment as provided in this section.” (Emphases added.) Thus, interests held by the instru-mentality of a terrorist state, as is the case here, are sub-ject to attachment under federal law.

Second, in Heiser, only foreign nationals, and not a foreign country, had an interest in the blocked funds held by intermediary banks. “Iranian entities were not the originators of the funds transfers. Nor were they the ul-timate beneficiaries.” Heiser, 735 F.3d at 936 (footnote omitted). By contrast, here, Bank Melli is the ultimate beneficiary; Visa and Franklin owe money to Bank Melli for services rendered pursuant to an agreement between them. Accordingly, Bank Melli has an interest in the blocked assets.

In summary, California law applies. Under California law, money owed to Bank Melli may be assigned to judgment creditors. Even if federal law applies, under the Heiser court’s rationale, attachment and execution are allowed here because Bank Melli is the intended con-tractual beneficiary of the contested funds.

D. Because Bank Melli does not enjoy sovereign immunity, Rule 19 presents no barrier.

Finally, Bank Melli relies on Federal Rule of Civil Procedure 19 to support its request for dismissal. That rule provides that a person must be joined as a party if

57a the person “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may . . . impair or impede the person’s ability to protect the interest.” Fed. R. Civ. P. 19(a). And, if the “person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dis-missed.” Fed. R. Civ. P. 19(b).

Bank Melli argues that this case must be dismissed because it is a required party that cannot be joined and, further, that the action cannot proceed without it “in equity and good conscience.” But, because TRIA § 201(a) and FSIA § 1610(g) confer jurisdiction by creating excep-tions to sovereign immunity, Bank Melli can be joined in this action. Thus it does not matter whether Bank Melli is otherwise a required party under Rule 19(a); dismissal is not required.

According to Bank Melli, Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008), requires dismissal. We disagree. A class of victims of human rights abuses in the Republic of the Philippines won a $2 billion default judg-ment against the Estate of Ferdinand Marcos, the for-mer president of that country. Id. at 857-858. The class attempted to enforce the judgment by attaching assets owed to Merrill Lynch by a bank incorporated by Marcos personally. Id. at 858. The Philippines claimed owner-ship of the bank, and therefore the disputed assets, be-cause the bank had been incorporated through a misuse of public office. Id. The Philippines also claimed immun-ity from the suit. Id. Merrill Lynch initiated an inter-pleader action naming, among other parties, the Republic of the Philippines and one of its agencies. Id. at 845-855. The Supreme Court held that the case should be dis-

58a missed because “it was improper [for the district court] to issue a definitive holding regarding a nonfrivolous, substantive claim made by an absent, required entity that was entitled by its sovereign status to immunity from suit.” Id. at 868.

This case plainly is distinguishable. In Pimentel, the Republic was a required party that could not be joined because of sovereign immunity. Here, Bank Melli does not enjoy sovereign immunity, so it can be joined as a party, whether or not it is a required party. Unlike the Republic in Pimentel, therefore, Bank Melli is able to ad-judicate its claim to the contested assets.

CONCLUSION We hold: (1) TRIA §201(a) and FSIA § 1610(g) author-

ize attachment and execution of the monies owed to Bank Melli. (2) Those statutes do not impose liability retroac-tively but, even if they are viewed as doing so, Altmann establishes a presumption in favor of retroactivity for statutes governing sovereign immunity, which is not re-butted here. (3) California law governs the ownership question; the blocked assets are property of Bank Melli under principles of California law and, thus, are subject to attachment and execution under TRIA § 201(a) and FSIA § 1610(g). The same result would obtain even if federal law governed. (4) Because Bank Melli can be joined in this action, the dismissal provision of Federal Rule of Civil Procedure 19 does not apply.

AFFIRMED.

59a BENSON, Senior District Judge, concurring in part

and dissenting in part:

I concur with the majority that § 201(a) of the Terror-ism Risk Insurance Act (“TRIA”) and § 1610 of the For-eign Sovereign Immunities Act (“FSIA”) permit the judgment creditors in this case to attach and execute against monies owed to Bank Melli. However, I respect-fully believe the majority erred in finding § 1610(g) to be a freestanding immunity exception under FSIA. In my view, judgment creditors relying on § 1610(g) are able to proceed, regardless of Bank Melli’s sovereign immunity, because the judgment creditors have sufficiently alleged Bank Melli is engaged in commerce in the United States within the meaning of § 1610(b)(3) of FSIA.

FSIA contains “extensive procedural protections for foreign sovereigns in United States courts.” Wyatt v. Syrian Arab Republic, 800 F.3d 331, 333 (7th Cir. 2015). Specifically, § 1609 of FSIA provides a general presump-tion that property of a foreign state and the property of an instrumentality or agency of a foreign state is immune from execution and attachment in United States courts. See 28 U.S.C. § 1609; 28 U.S.C. § 1603(a). In turn, § 1610 provides a series of exceptions to this general rule.

Prior to 2008, § 1610 provided different rules for at-tachment immunity depending on whether the party was seeking immunity as the foreign state or as an agency or instrumentality of a foreign state. Regarding foreign states, § 1610(a) denied immunity where: (1) a judgment creditor obtained a judgment against the foreign state; (2) the property of the foreign state is located in the United States; (3) the property is used for “a commercial activity” in the United States; and (4) one of § 1610(a)’s seven avenues for abrogating immunity applied. See 28 U.S.C. § 1610(a). Similarly, with respect to agencies and

60a instrumentalities, § 1610(b) denied immunity where: (1) a judgment creditor obtained a judgment against an agen-cy or instrumentality of foreign state; (2) the agency or instrumentality is engaged in commercial activity in the United States; (3) the property of the agency or instru-mentality is located in the United States; and (4) one of § 1610(b)’s three avenues for abrogating immunity ap-plied. See 28 U.S.C. § 1610(b).

Prior to 2008, the judgment creditors in this case would have been required to obtain a judgment against Bank Melli to utilize the immunity waiver provisions un-der § 1610(b) to attach Bank Melli’s property.

In 2008, Congress amended FSIA, adding § 1610(g) and § 1605A. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, §1083, 122 Stat. 3, 338 (2008). The purpose of the amendments was to relax the protections of § 1610 in cases of state sponsored ter-rorism to “make it easier for terrorism victims to obtain judgments and to attach assets.” Gates v. Syrian Arab Republic, 755 F.3d 568, 576 (7th Cir. 2014); In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 62 (D.D.C. 2009) (noting, “these latest additions to . . . FSIA demonstrate that Congress remains focused on eliminat-ing those barriers that have made it nearly impossible for plaintiffs in these actions to execute civil judgments against Iran or other state sponsors of terrorism”).

Under § 1610(g), if a judgment creditor obtains a judgment under § 1605A, the property of the foreign state and “the property of an agency or instrumentality of such a state, including property that is a separate ju-ridical entity . . . is subject to attachment . . . and execu-tion, upon that judgment as provided in this section, re-gardless” of five factors. 28 U.S.C. § 1610(g)(1) (emphasis added). The five factors enumerated in § 1610(g)(A)

61a through (E) reflect the Bancec presumption, which re-quires this Court to treat government entities estab-lished as separate juridical entities distinct from their sovereigns. See First Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 620-621 (1983); Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071 n.9 (9th Cir. 2009) (outlining the Bancec factors (citing Walter Fuller Aircraft Sales, Inc. v. Republic of the Phil-ippines, 965 F.2d 1375, 1380 n.7 (5th Cir. 1992))).

Section 1610(g) leads to two straightforward conclu-sions under FSIA. First, if a party obtains a § 1605A judgment against a state sponsor of terror, the Bancec presumption is eliminated, which permits a court to at-tach and execute against the property of the agency or instrumentality to satisfy the judgments against the for-eign state. See Estate of Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429, 442 (D.D.C. 2012) (“Section § 1610(g) subparagraphs (A)-(E) explicitly prohibit con-sideration of each of the five Bancec factors.”), aff ’d sub nom. Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013). Second, the language “as provided in this section” requires a judgment creditor to find an ex-isting mechanism of attachment under § 1610. Section 1610(g) does not create a new avenue for attachment un-der FSIA; rather, § 1610(g) broadens the force of § 1610’s existing avenues for attachment by eliminating the legal fiction that Bank Melli is a separate juridical entity from Iran.

In this case, judgment creditors relying on § 1610(g) may proceed to attach Bank Melli’s property because Bank Melli’s property is not immune from attachment by virtue of § 1610(b)(3). Section 1610(b)(3) eliminates at-tachment immunity if an agency or instrumentality is “engaged in commercial activity in the United States”

62a and “the judgment relates to a claim for which the agen-cy or instrumentality is not immune by virtue of section 1605A of this chapter . . . regardless of whether the prop-erty is or was involved in the act upon which the claim is based.” 28 U.S.C. § 1610(b)(3). The judgment creditors can attach Bank Melli’s property because: (1) the judg-ment creditors have obtained a judgment against Iran pursuant to § 1605A; (2) § 1610(g) eliminates the Bancec presumption, allowing this Court to attach and execute against Bank Melli’s assets to satisfy the judgment against Iran; and (3) the judgment creditors have suffi-ciently ple[d] that Bank Melli is engaged in commercial activity in the United States.

Section 1603(c) of FSIA defines commercial activity as: “either a regular course of commercial conduct or a particular commercial transaction or act. The commer-cial character of an activity shall be determined by refer-ence to the nature of the course of conduct or particular transaction or act, rather than by reference to its pur-pose.” 28 U.S.C. § 1603(c) (emphasis added). Bank Melli entered into a contract with an American company to provide an American company a commercial service. At this stage in the litigation, the Court can conclude that the judgment creditors relying on § 1610(g) have suffi-ciently alleged Bank Melli is engaged in commercial ac-tivity in the United States.

The majority disagrees with the aforementioned in-terpretation and concludes that § 1610(g) creates a free-standing immunity exception under FSIA. The majority believes a § 1605A judgment creditor may attach Bank Melli’s property regardless of any commercial component under § 1610(a) or § 1610(b). In my view, respectfully, the majority misses the mark in three important respects.

63a First, the majority erroneously finds that § 1610(g) is a

freestanding exception to immunity by concluding:

Subsection (g) covers a different subject than § 1610(a) through (e): by its express terms, it ap-plies only to ‘certain actions,’ specifically, judg-ments ‘entered under section 1605A.’ (Emphasis added.) In turn, § 1605A revokes sovereign immun-ity for damages claims against a foreign state for personal injury or death caused by ‘torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support’ for such an act. By definition, such claims do not arise from com-mercial activity; they arise from acts of torture (and the like).

[Maj. Op., p. 16.] In doing so, the majority misinterprets the operation of § 1610(a) and (b) waivers in the context of § 1605A judgments. Under §1610(b)(3), a judgment creditor can attach property where the instrumentality is engaged in commercial activity in the United States. Furthermore, § 1610(b)(3) provides that attachment im-munity is eliminated “regardless of whether the property is or was involved with the act upon which the claim is based.” 28 U.S.C. § 1610(b)(3) (emphasis added). There-fore, a § 1605A judgment allows a judgment creditor to get immunity waived for any property where the instru-mentality is engaged in commerce in the United States, regardless whether the property was involved in the ac-tions that gave rise to the § 1605A waiver of immunity against the foreign state. Therefore, Bank Melli’s prop-erty does not need to be involved in terrorism to abro-gate attachment immunity under § 1610(b)(3).

Second, the majority concludes that the “as provided in this section” language found in § 1610(g) refers to the procedural aspects of § 1610, namely § 1610(f ). Fair

64a enough. But, the majority’s conclusion does not mean the language “as provided in this section” refers only to § 1610(f ). Indeed, the majority’s piecemeal reading of § 1610(g) renders other portions of § 1610 inoperable. “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. An-drews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). This Court should adopt the in-terpretation of § 1610 that “ ‘ gives effect to every clause and word.’ ” Marx v. Gen. Revenue Corp., ___U.S.___, 133 S. Ct. 1166, 1177 (2013) (citing Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91 (2011)).

The majority ignores the avenues for exemption under § 1610(a)(7) and § 1610(b)(3). Section 1610(a)(7) and § 1610(b)(3) provide immunity, in addition to requiring some interplay with commerce, where “the judgment re-lates to a claim for which the foreign state is not immune under section 1605A . . . .” If a § 1605A judgment creditor can waive attachment immunity under § 1610(g) without proving the property is used in commerce or the instru-mentality is engaged in commerce in the United States, § 1610(a)(7) and § 1610(b)(3) are rendered superfluous and obsolete. Conversely, recognizing § 1610(g)’s limited purpose was to eliminate the Bancec presumption en-sures this Court gives effect to every clause and word in § 1610 while honoring the purpose of the 2008 FSIA amendments.

Finally, the majority’s holding ignores the practical limitation the commerce requirement places on § 1605A judgments. Reading § 1610(g) as a freestanding immuni-ty exception does not just relax FSIA in the context of terrorism—it eliminates any immunity protection under

65a FSIA for state sponsors of terror and their instrumental-ities. For example, in Rubin v. Islamic Republic of Iran, American citizens sued and obtained default judgments against Iran for injuries and losses that arose out of a su-icide bombing carried out by Hamas in Israel. 33 F. Supp. 3d 1003, 1006 (N.D. Ill. 2014). The Rubin plaintiffs sought to “attach and execute on numerous ancient Per-sian artifacts” in possession of two museums in the Unit-ed States to satisfy their default judgments against Iran. Id. Like the judgment creditors in this case, the Rubin plaintiffs argued that § 1610(g) is a freestanding immuni-ty exception and, therefore, the plaintiffs may attach Iran’s artifacts to satisfy their judgments. Id. at 1013.

The court disagreed, finding: “ The plain language in-dicates that Section 1610(g) is not a separate basis of at-tachment, but rather qualifies the previous subsections.” Id. The court concluded, “the purpose of Section 1610(g) is to counteract the Supreme Court’s decision in Bancec, and to allow execution against the assets of separate ju-ridical entities regardless of the protections Bancec may have offered.” Id. Currently, the Rubin case is pending appeal in the Seventh Circuit. Rubin v. Islamic Republic of Iran, 33 F. Supp. 3d 1003 (N.D. Ill. 2014), appeal dock-eted, No. 14-1935 (7th Cir. Apr. 25, 2014).

Surely this Court’s holding will be argued as prece-dent to allow the Rubin plaintiffs to seize Persian arti-facts to be auctioned off to satisfy the Rubin plaintiffs’ default judgments. This would be an unjustified and un-fortunate result. When Congress amended FSIA, the in-tention was to eliminate the Bancec presumption and re-lax the rigidity of § 1610 to make it easier for victims of terrorism to satisfy judgments against state sponsors of terror. Congress did not, however, intend to open the floodgates and allow terrorism plaintiffs to attach any

66a and all Iranian property in the United States. Rather, Congress intended the commerce limitation to remain in place.1 If a foreign state is designated as a state sponsor of terror, the state and the instrumentalities and agen-cies of the state lose the privilege of doing business in the United States without running the risk of property being seized to satisfy judgments.

In sum, I would require judgment creditors relying on § 1610(g) to satisfy one of § 1610’s existing avenues for abrogating attachment immunity. In this case, the judg-ment creditors have done that. The judgment creditors have sufficiently alleged Bank Melli is engaged in com-merce in the United States within the meaning of § 1610(b)(3).

1 TRIA § 201 similarly contains a limitation on attachment and execu-tion. TRIA § 201 requires attachable assets to be defined as “blocked assets.” Section 201(d)(2)(A) defines a “blocked asset” as any asset “seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act (50 U.S.C. App. 5(b)) or under sec-tions 202 and 203 of the International Emergency Economic Powers Act (50 U.S.C. 1701; 1702).”

67a

APPENDIX C

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———— DOCKET NOS. 13-15442, 13-16100

———— MICHAEL BENNETT; LINDA BENNETT,

AS CO-ADMINISTRATORS OF THE ESTATE OF MARIA ANN BENNETT,

Plaintiffs-Appellees,

v.

THE ISLAMIC REPUBLIC OF IRAN,

Defendant,

v.

VISA INC.; FRANKLIN RESOURCES, INC.,

Defendants-third-party-plaintiffs–Appellees,

v.

GREENBERG AND ACOSTA JUDGMENT CREDITORS,

Plaintiff-third-party-defendant–Appellee,

HEISER JUDGMENT CREDITORS,

Plaintiff-fourth-party-defendant–Appellee,

v.

BANK MELLI,

Plaintiff-third-party-defendant–Appellant.

68a ————

OPINION ————

August 26, 2015

————

Appeals from the United States District Court for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

————

Argued and Submitted April 15, 2015—San Francisco, California

————

Before: Alex Kozinski and Susan P. Graber, Circuit Judges, and Dee V. Benson,* Senior District Judge.

————

Opinion by Judge Kozinski ————

KOZINSKI, Circuit Judge:

Congress has enacted two statutes to help victims of terrorism collect on money judgments against the foreign states responsible for sponsoring the attacks. We con-sider whether victims can collect from an instrumentality of a state that has sponsored terrorism when the instru-mentality is a separate juridical entity that wasn’t a party to the underlying lawsuit.

I. Background The Foreign Sovereign Immunities Act (FSIA) is the

sole basis for jurisdiction over foreign states in U.S.

* The Honorable Dee V. Benson, Senior District Judge for the U.S. District Court for the District of Utah, sitting by designation.

69a courts. 28 U.S.C. § 1330. Under the FSIA, foreign sover-eigns are generally immune from jurisdiction, except for a few carefully delineated exceptions. One such except-ion is for claims arising out of acts of state-sponsored ter-rorism. See id. at § 1605A.

Four groups of individuals—the Bennett, Greenbaum, Acosta and Heiser creditors—hold separate judgments obtained in U.S. courts against the Republic of Iran, based on various terrorist attacks that occurred between 1990 and 2002. The Bennett creditors are owed almost $13 million in damages for Iran’s role in the 2002 bomb-ing of a cafeteria at Hebrew University in Jerusalem. The Greenbaum creditors are owed almost $20 million for a 2001 bombing of a Jerusalem restaurant. The Acosta creditors are owed over $350 million for Iran’s part in a 1990 mass shooting. And, finally, the Heiser creditors are owed over $590 million for the 1996 bombing of the Khobar Towers in Saudi Arabia. All judgments were by default, but no one disputes that they are valid and that all four sets of creditors are owed money by Iran.

However, winning a money judgment against a foreign state isn’t the end of the story, because sovereign immun-ity separately protects the assets of a foreign sovereign from attachment. For years, the state-sponsored terror-ism exception to the FSIA created an anomaly—it abro-gated a foreign sovereign’s immunity from judgment, but not its immunity from collection. Terrorism victims therefore had a right without a meaningful remedy.

Congress subsequently enacted two statutes closing this loophole: section 201(a) of the Terrorism Risk In-surance Act (TRIA) and 28 U.S.C. § 1610(g). Section 201 was enacted to “deal comprehensively with the problem of enforcement of judgments rendered on behalf of vic-tims of terrorism . . . by enabling them to satisfy such

70a judgments through the attachment of blocked assets of terrorist parties.” H.R. Rep. No. 107-779, at 27 (2002) (Conf. Rep). “Blocked assets” are those that have been seized or frozen by the federal government. The TRIA provides that “the blocked assets of [a] terrorist party (including the blocked assets of any agency or in-strumentality of that terrorist party) shall be subject to execution.” Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, § 201(a), 116 Stat. 2322, 2337 (codified at 28 U.S.C. § 1610 Note “Satisfaction of Judgments from Blocked Assets of Terrorists, Terrorist Organizations, and State Sponsors of Terrorism”).

Section 1610(g), enacted in 2008 as an amendment to the FSIA, extended the TRIA’s abrogation of asset im-munity to funds that were not blocked. It provides that “the property of a foreign state against which a judgment is entered under [this statute], and the property of an agency or instrumentality of such a state, including prop-erty that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution . . . upon that judgment as provided in this section.” 28 U.S.C. § 1610(g).

These two statutes give creditors a theoretical avenue to collect on the judgments they’ve obtained. But, of course, they have to find the money first—and Iranian assets within the United States are notoriously hard to come by. An opportunity arose in 2007, when the De-partment of Treasury issued a blocking order prohibiting certain Iranian assets in the United States from being transferred back to Iran. That blocking order was based on Iran’s illicit nuclear program, not its state-sponsored terrorism. Nonetheless, it meant that various financial institutions had money owed to Iran sitting in accounts

71a within the United States. The creditors here saw a rare chance to collect on their judgments and filed a complaint seeking access to $17.6 million in blocked assets held by Visa and Franklin1 but owed to Bank Melli—Iran’s na-tional bank. Fearing they might be liable to Bank Melli if they simply handed the money over to the creditors, Visa and Franklin responded by filing a third-party complaint to interplead Bank Melli and obtain final resolution of who was entitled to the funds. Visa and Franklin depos-ited the funds into the district court’s registry. Bank Melli made an appearance and moved to dismiss. The district court denied that motion but certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). We review de novo. See Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011).

II. Discussion Bank Melli makes four distinct arguments as to why

the creditors shouldn’t be able to collect from the funds held by Visa and Franklin. First, it argues that the as-sets are protected by sovereign immunity notwithstand-ing the TRIA and section 1610(g), because those statutes waive sovereign immunity only for the “terrorist par-ty”—Iran—and Bank Melli is a separate juridical entity from Iran. Second, it asserts that Federal Rule of Civil Procedure 19 requires dismissal of this entire action, be-cause Bank Melli is an indispensable party that cannot be joined. Third, it argues that applying the TRIA and sec-tion 1610(g) to the judgments at issue here would be im-permissibly retroactive, because the creditors obtained their judgments against Iran before the statutes’ enact-

1 Visa allegedly owes Bank Melli the money for the bank’s facilitation of Visa cards in Iran. When the blocking order was issued, Visa in-vested the assets owed to Bank Melli in a mutual fund held by Franklin, an investment company.

72a ment. And, finally, Bank Melli claims that the frozen as-sets aren’t subject to the TRIA or section 1610(g) be-cause those statutes extend only to assets “owned” by the foreign entity. Because the assets here are technically in the possession of Visa and Franklin, Bank Melli argues that they aren’t yet “owned” by Bank Melli.

1. Foreign Sovereign Immunity Bank Melli argues that the TRIA and section 1610(g)

do not abrogate the asset immunity of all of a terrorist state’s instrumentalities, only those that are alter egos of the state. For this proposition, Bank Melli relies princi-pally on the Supreme Court’s holding in First National City Bank v. Banco Para El Comercio Exterior de Cuba (“Bancec”), that “government instrumentalities estab-lished as juridical entities distinct and independent from their sovereign should normally be treated as such.” 462 U.S. 611, 626-627 (1983). Under Bancec, the only condi-tions under which an instrumentality may be equated with the sovereign are (1) when it is “so extensively con-trolled by its owner that a relationship of principal and agent is created” or (2) when failure to regard them as equivalent “would work fraud or injustice.” Id. at 629 (in-ternal quotation marks omitted). Bank Melli contends that the TRIA and section 1610(g) incorporate Bancec’s distinction between instrumentalities that are separate juridical entities and those that are alter egos, and abro-gates immunity only as to those instrumentalities that, unlike Bank Melli, fall within Bancec’s two exceptions.

We cannot reconcile Bank Melli’s argument with the plain text of either statute. Section 201(a) of the TRIA specifically states that “the blocked assets of [a] terrorist party (including the blocked assets of any agency or in-strumentality of that terrorist party) shall be subject to execution.” § 201(a) (emphasis added). Bank Melli ar-

73a gues that the parenthetical phrase is merely illustrative and does not purport to expand the meaning of “terrorist party” beyond Bancec. But we must assume Congress meant what it said when it used the term “any agency or instrumentality.” See United States v. Gonzales, 520 U.S. 1, 5 (1997). “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” Id. (quoting Webster’s Third New International Dictionary 97 (1976)). Because “Congress did not add any language limiting the breadth of that word,” we must read the statute as referring to all in-strumentalities. Id.

Furthermore, Bank Melli’s interpretation “flouts the rule that a statute should be construed so that effect is given to all its provisions, [and] no part will be in-operative or superfluous.” Clark v. Rameker, 134 S. Ct. 2242, 2248 (2014) (internal quotation marks omitted). Because an alter ego under Bancec is the terrorist party, there would be no need for Congress to separately pro-vide for attachment against instrumentalities unless it sought to extend coverage to those instrumentalities that cannot be equated with the terrorist party itself.

We therefore agree with the Second Circuit that it is “clear beyond cavil that Section 201(a) of the TRIA pro-vides courts with subject matter jurisdiction over post-judgment execution and attachment proceedings against property held in the hands of an instrumentality of the judgment-debtor, even if the instrumentality is not itself named in the judgment.” Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010).

Congress spoke even more clearly in section 1610(g). Section 1610(g) allows attachment against property held by an instrumentality “that is a separate juridical entity,” “regardless of ” the five factors that several courts—

74a including ours—have considered when deciding whether an instrumentality is an alter ego under Bancec. See Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1071-1072 & n.9 (9th Cir. 2002). By specifically referencing—and disavowing—Bancec’s test, section 1610(g) makes unmistakably clear that whether or not an instrumentali-ty is an alter ego is irrelevant to determining whether its assets are attachable.

Bank Melli argues that section 1610(g) doesn’t permit attachment because the 1955 Treaty of Amity between the U.S. and Iran requires that Iranian companies “have their juridical status recognized,” prohibits “unreasona-ble or discriminatory measures” against them and re-quires that their property be protected in accordance with international law. Treaty of Amity, Economic Rela-tions and Consular Rights Between the United States of America and Iran, Aug. 15, 1955, 8 U.S.T. 899, 902-903. But we cannot read a 60-year-old treaty provision as bar-ring application of the plain text of a later-enacted feder-al law. See Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam). In any event, there’s nothing unreason-able, discriminatory or in violation of international law about waiving sovereign immunity for terrorism-based judgments. Bank Melli’s assets aren’t subject to attach-ment because it’s an Iranian company, but because it’s an instrumentality of a state that has sponsored terrorism.

Finally, Bank Melli reads section 1610(g)—which al-lows attachment in aid of execution upon judgments “as provided in this section”—to mean that attachment im-munity is abrogated only if some other provision of sec-tion 1610 independently authorizes the attachment. But the other provisions of section 1610 that abrogate at-tachment immunity already apply to instrumentalities with separate juridical status. See 28 U.S.C. § 1610(a)

75a (abrogating attachment immunity of property of a for-eign state when the property is “used for commercial ac-tivity in the United States”); id. (defining “foreign state” by reference to section 1603(a), which states that a “for-eign state” includes an instrumentality “which is a sepa-rate legal person”); id. at § 1610(b) (abrogating attach-ment immunity of an instrumentality “engaged in com-mercial activity in the United States”). And the plain text of section 1610(g) requires only that the foreign state be subject to a section 1605A judgment before the prop-erty of an instrumentality becomes available for collec-tion. Id. at § 1610(g) (subjecting to attachment “the prop-erty of a foreign state against which a judgment is en-tered under section 1605A, and the property of an agen-cy or instrumentality of such a state” (emphasis added)). Thus, reading section 1610(g) to require attachment im-munity to be grounded in some other subsection of sec-tion 1610 would render section 1610(g) a nullity.

In short, both the TRIA and section 1610(g) provide independently sufficient grounds for abrogating Bank Melli’s asset immunity for terrorism-based judgments.

2. Rule 19 Federal Rule of Civil Procedure 19 requires that a

person be joined if he “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may . . . impair or im-pede the person’s ability to protect the interest[ ] or . . . leave an existing party subject to a substantial risk of in-curring double, multiple, or otherwise inconsistent obli-gations because of the interest.” Fed. R. Civ. P. 19(a). “If a person who is required to be joined if feasible can-not be joined, the court must determine whether, in equi-ty and good conscience, the action should proceed among the existing parties or should be dismissed.” Id. at 19(b).

76a Bank Melli argues that this case must be dismissed be-cause it is an indispensable party to the lawsuit that can-not be joined, and the action cannot “in equity and good conscience” proceed without it. According to Bank Melli, the case is controlled by the Supreme Court’s holding in Republic of Philippines v. Pimentel, that when “sover-eign immunity is asserted, and the claims of the sover-eign are not frivolous, dismissal of the action must be or-dered where there is a potential for injury to the inter-ests of the absent sovereign.” 553 U.S. 851, 867 (2008).

Pimentel is inapposite. In Pimentel, the judgment at issue wasn’t against the sovereign—the Republic of Phil-ippines—but rather against the estate of its former dicta-tor, Ferdinand Marcos. The Philippines asserted a right to certain of Marcos’s assets being held in the United States, out of which various creditors were trying to sat-isfy their judgments against Marcos. No one disputed that the Philippines was a required party, because—as a type of creditor itself—it clearly had a legal interest in how the funds were disposed of. Nor was there a dispute that the Philippines was sovereignly immune and there-fore couldn’t be joined.

Here, by contrast, the sovereign is a judgment debtor, not a creditor. Iran has already had a full and fair oppor-tunity to assert its interests in court. It is undisputed that Iran owes money to the creditors and that the mon-ey held by Visa and Franklin is owed to Iran. Iran, therefore, has no further interests to assert. Nor does Bank Melli have an independent interest to assert: Be-cause its attachment immunity with respect to the funds held by Visa and Franklin is abrogated by the TRIA and section 1610(g), Bank Melli is Iran for the limited pur-poses of this interpleader action. This is solely a collec-tion proceeding, and a judgment debtor isn’t generally

77a considered an indispensable party to an action to enforce its debts. See Restatement (Second) of Judgments § 8 (1982) (suggesting courts may enforce attachment of property absent the judgment debtor because he “may make an appearance to contest the court’s jurisdiction over the property without thereby submitting to the ju-risdiction of the court”); cf. Cal. Civ. Proc. Code § 708.220 (“judgment debtor . . . [is] not an indispensable party” to an enforcement proceeding). Therefore, none of Rule 19(a)’s prerequisites for dismissal has been met: The court can “accord complete relief among existing par-ties”; Bank Melli’s ability to protect its interests isn’t im-paired; and there’s no “substantial risk of an existing par-ty incurring double, multiple, or otherwise inconsistent obligations.” Fed. R. Civ. P. 19(a).

Even if that were not so, Rule 19(a) is inapposite be-cause Bank Melli can be joined in this action. Unlike the Philippines in Pimentel, Bank Melli is not protected by sovereign immunity in this proceeding, because, as dis-cussed above, Congress has abrogated the immunity of instrumentalities of terrorist parties in collection actions.

Finally, to hold, as Bank Melli urges, that Rule 19 re-quires dismissal in this case would effectively eviscerate section 201 of the TRIA and section 1610(g). A collection action against a state inherently involves attempting to obtain funds owned by an entity capable of asserting sov-ereign immunity. If dismissal is required every time such an entity sets forth a “non-frivolous” argument as to why it shouldn’t have to pay, collection will be impossible as a practical matter. Nothing in Pimentel or Rule 19 dictates such an absurd result.

3. Retroactivity Bank Melli next argues that the creditors cannot use

the TRIA and section 1610(g) to collect on their judg-

78a ments because those judgments predated the enactment of the two collection statutes. When, as here, Congress has not explicitly provided for a statute’s retroactive ef-fect, we must ask whether retroactive application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Land-graf v. USI Film Prods., 511 U.S. 244, 280 (1994). Bank Melli argues that if the TRIA and section 1610(g) permit attachment of its assets, it “would go from having no lia-bility for [conduct predating the statutes’] enactment to being liable for the entirety of the resulting judgments.”

But the TRIA and section 1610(g) do not impose retro-active liability on Iran—they merely provide a means of collection for judgments where liability has already been established. Iran was liable for its terrorism-related conduct long before the TRIA and section 1610(g) were enacted. Iran’s liability results from the former 28 U.S.C. § 1605(a)(7) (now section 1605A), which permitted U.S. citizen terrorism victims to bring suit against Iran in federal court. That statute was in force at the time of Iran’s unlawful conduct. The TRIA and section 1610(g) do not attach any additional penalty to that conduct—they only create an avenue for creditors to obtain money they are already owed.

Bank Melli’s real argument, therefore, must be that, even though Iran knew its conduct was unlawful and sub-ject to liability in U.S. courts at the time it sponsored the relevant terrorist attacks, it did not know that victims would have the precise avenue for collection they now have. That hardly implicates the central concern of Landgraf: that the conduct a defendant engaged in was innocent at the time it occurred. Here, Iran knew it was violating the law and that it could be liable; it just be-

79a lieved that the procedures that existed when it acted would be insufficient to permit victims to collect on their judgments. There is no permissible reliance interest in the inadequacy of enforcement procedures. Iran as-sumed the risk that the money it owed in damages based on its sponsorship of terrorism would eventually be col-lected upon. Indeed, it’s clear that the TRIA and section 1610(g) were designed precisely to provide an avenue to recovery for existing claimants with judgments against terrorist states. See Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9, 26 (D.D.C. 2011). To say that all terrorist attacks prior to the enactment of the collec-tion statutes cannot result in collectible judgments finds no basis in the Supreme Court’s retroactivity cases and runs counter to Congress’s clear intent.

4. Ownership of the Assets Bank Melli argues that the TRIA and section 1610(g)

apply only to assets “owned” by Bank Melli and—while it concedes it has a 100% beneficial interest in the assets held by Visa and Franklin—it claims it doesn’t “own” them yet because the funds have been blocked.

But there’s more to ownership than physical posses-sion. The question of how to determine the funds’ owner-ship is controlled by our holding in Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1130 (9th Cir. 2010). There, we noted that “[e]nforcement proceedings in fed-eral district court are governed by the law of the state in which the court sits” unless a federal statute dictates otherwise. Id. We held that the “FSIA does not provide methods for the enforcement of judgments against for-eign states, only that those judgments may not be en-forced by resort to immune property.” We therefore con-cluded that “California law on the enforcement of judg-ments applies.” Id. Finally, we noted that “California

80a enforcement law authorizes a court to ‘order the judg-ment debtor to assign to the judgment creditor . . . all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments.’ ” Id. at 1130-1131 (quoting Cal. Civ. Proc. Code § 708.510(a)) (emphasis added).

Those holdings collectively dispose of Bank Melli’s ar-gument here. Because the FSIA doesn’t provide a meth-od for enforcement, California law applies to this pro-ceeding and, under California law, money “owed to” Bank Melli may be assigned to judgment creditors. The fact that Bank Melli is not yet in physical possession of the funds is immaterial.

* * * * *

Bank Melli has set forth numerous creative arguments as to why it shouldn’t be liable for Iran’s debt. But this is an arena in which Congress has spoken with unmistak-able clarity. Section 201 of the TRIA and 28 U.S.C. § 1610(g) permit victims of terrorism to collect money they’re owed from instrumentalities of the state that sponsored the attacks. Nothing in the text of the FSIA, Rule 19 or the Supreme Court’s retroactivity cases com-pels a different result. The district court correctly denied Bank Melli’s motion to dismiss.

AFFIRMED.

81a

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

————

DOCKET NO. 3:11-CV-05807 (CRB) ————

MICHAEL BENNETT, et al., Plaintiffs,

v.

THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

————

ORDER DENYING MOTION TO DISMISS ————

February 28, 2013 ————

This case involves an Iranian instrumentality that seeks to avoid payment to American victims of Iranian terrorist acts. Specifically, four groups of judgment creditors (“Plaintiffs”) who hold judgments against Iran seek to recover assets (“the Blocked Assets”) held by Third Party Plaintiffs Visa and Franklin.1 Those assets are owed to an Iranian instrumentality, Bank Melli, but have been blocked by executive orders issued by the President of the United States and blocking regulations issued by the United States Department of the Treasury,

1 Visa is a financial services company that had a commercial relation-ship with Third Party Defendant Bank Melli. Compl. (dkt. 16) ¶ 16. A Franklin subsidiary distributed shares in the mutual fund in which the Blocked Assets were invested. Id. ¶ 18.

82a Office of Foreign Assets Control (“OFAC”). Visa and Franklin brought this interpleader action “to obtain a de-termination as to which [of the groups of judgment credi-tors], if any, has priority with respect to those assets to satisfy their judgments or their claims.” Compl. ¶ 4. Bank Melli has appeared in the case, and now moves to dismiss it in its entirety. See generally MTD (dkt. 112).

I. BACKGROUND A. Bank Melli and the Blocked Assets Bank Melli is Iran’s largest financial institution. MTD

at 2. Its stock is wholly owned by the Iranian govern-ment. Id. The Blocked Assets at issue in this case are “funds due and owing by contract to Bank Melli pursuant to a commercial relationship with [Visa].” Compl. ¶ 16. In 1984, the United States designated Iran a terrorist party pursuant to section 6(j) of the Export Administra-tion Act of 1797, and, pursuant to the International Emergency Economic Powers Act, the President di-rected that “all property and interests in property in the United States of persons and entities listed in the order or subsequently listed are blocked and may not be trans-ferred, paid, exported, withdrawn, or otherwise dealt in.” Id. ¶ 17. The United States added Bank Melli to the list, freezing its assets, in October 2007, upon finding that from 2002 to 2006, Bank Melli had “facilitated numerous purchases of sensitive materials for Iran’s nuclear and missile programs,” “provided a range of financial services on behalf of Iran’s nuclear and missile industries,” and “employed deceptive banking practices to obscure its in-volvement from the international banking system.” Id.; Fact Sheet: Designation of Iranian Entities and Indi-viduals for Proliferation Activities and Support for Ter-rorism, U.S. Dep’t of the Treasury Press Ctr. (Oct. 25,

83a 2007), http://www.treasury.gov/press-center/press-releases/ pages/hp644.aspx (hereinafter “10/25/07 Fact Sheet”).

Visa and Franklin claim no ownership interest in the Blocked Assets and “only continue[ ] to hold them be-cause, pursuant to OFAC regulations, the assets cannot be released to Bank Melli or to anyone else without a li-cense from OFAC or an appropriate court order.” Compl. ¶ 18.2

B. Procedural History

Plaintiffs are four groups of individuals (the Bennett Plaintiffs, the Greenbaum Plaintiffs, the Acosta Plain-tiffs, and the Heiser Plaintiffs) who obtained default judgments against the government of Iran. See MTD at 2. The Bennett Plaintiffs sued Iran over the July 31, 2002 bombing of a cafeteria at Hebrew University in Je-rusalem. MTD at 3 n.2. On August 30, 2007, they ob-tained a default judgment of almost $13 million under 28 U.S.C. § 1605(a)(7). Id. The Greenbaum Plaintiffs sued Iran over the August 9, 2001 bombing of a Jerusalem res-taurant. Id. On August 10, 2006, they obtained a default judgment of almost $20 million under 28 U.S.C. § 1605(a)(7). Id. The Acosta Plaintiffs sued Iran over the November 5, 1990 shooting of various individuals, includ-ing U.S. Postal Officer Carlos Acosta. Id. On August 26, 2008, they obtained a default judgment exceeding $350 million under 28 U.S.C. § 1605A. Id. The Heiser Plain-tiffs sued Iran over the June 25, 1996 bombing of the Khobar Towers in Saudi Arabia. Id. On December 22, 2006, they obtained a default judgment of over $254 mil-lion under 28 U.S.C. § 1605(a)(7); on September 30, 2009,

2 Bank Melli does not dispute this, arguing that “[i]f this Court rules in favor of Bank Melli, the assets will go back to Visa and Franklin.” Opp’n to Discharge Mot. (dkt. 119) at 2-3.

84a they obtained a further default judgment of almost $337 million under 28 U.S.C. § 1605A. Id. Bank Melli is not named as a party to any of the judgments and is not al-leged to have been involved in any of the events underly-ing them. Id. at 4.

On December 2, 2011, the Bennett Plaintiffs filed a complaint against Visa and Franklin, seeking to execute against the Blocked Assets in order to satisfy their judgment. Id. On February 3, 2012, Visa and Franklin filed their Third Party Complaint in the nature of an in-terpleader, naming as defendants Bank Melli and other third-party defendants with potential claims to the Blocked Assets. See generally Compl. Visa and Franklin subsequently deposited the assets into this Court’s regis-try. See dkts. 88-89.

On April 26, 2012, the Clerk entered a default against Bank Melli. See dkt. 79. On June 12, 2012, however, Bank Melli entered its appearance, see dkt. 96, and on July 5, 2012, this Court entered a stipulated order vacat-ing the default, see dkt. 109. Bank Melli then moved to dismiss the case. See generally MTD.

The Court discharged Visa and Franklin at the No-vember 16, 2012 hearing, and heard preliminary argu-ment on the merits of Bank Melli’s motion to dismiss. The parties each filed supplemental briefs, see Bank Melli Br. (dkt. 124); Pls. Br. (dkt. 125), and then, on De-cember 13, 2012, participated in a second and more ful-some hearing on the motion to dismiss. See Mins. (dkt. 127). The Court then took the motion under submission.

II. DISCUSSION Bank Melli’s motion makes four arguments for dismis-

sal: (A) that under First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) (“Bancec”), it cannot be held liable for Iran’s debts;

85a (B) that the statutes on which Plaintiffs rely to pursue the Blocked Assets, the Terrorism Risk Insurance Act of 2002 (TRIA), Pub. L. No. 107-297, § 201(a), 116 Stat. 2322, 2337 (hereinafter “TRIA”), and the Foreign Sover-eign Immunities Act (FSIA), 28 U.S.C. § 1610(g) (here-inafter “section 1610(g)”), do not apply retroactively; (C) that TRIA and section 1610(g) only apply where the assets at issue are “assets of ” and “property of ” Bank Melli, allegations that are missing here; and (D) that Federal Rule of Civil Procedure 19 requires dismissal. See generally MTD. This Order addresses each argu-ment in turn.

A. Bancec

Bank Melli argues first that it cannot be held liable for the debts of Iran, because, although it is an instrumental-ity of Iran, it is juridically distinct. See MTD at 6. No doubt, the Supreme Court held in Bancec, 462 U.S. at 626-627, that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.” In addi-tion, the Treaty of Amity between the United States and Iran states that “[c]ompanies constituted under the ap-plicable laws” of each country must “have their juridical status recognized within the territories of the other.” Treaty of Amity, Economic Relations, and Consular Rights, U.S.-Iran, Art. III ¶ 1, Aug. 15, 1955, 8 U.S.T. 899.3

3 But see Weinstein v. Islamic Rep. of Iran, 609 F.3d 43, 53 (2d Cir. 2010), cert. denied, 133 S. Ct. 21 (June 25, 2012) (explaining that the Supreme Court found in Sumitomo Shoji America, Inc. v. Avagli-ano, 457 U.S. 176 (1982), that this language is found in a number of treaties, and was not designed to give separate juridical status to in-strumentalities).

86a However, two statutes permit judgment creditors to

execute on Blocked Assets in this context, abrogating Bancec as to terrorism-based judgments against foreign state sponsors of terrorism. Section 1610(g)4 states that “the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity . . . is subject to attachment in aid of execution, and execution, upon that judgment.” TRIA5 similarly provides:

Notwithstanding any other provision of law . . . in every case in which a person has obtained a judg-ment against a terrorist party on a claim based up-on an act of terrorism, or for which a terrorist party is not immune under section 1605(a)(7) of title 28 United States Code, the blocked assets of that ter-rorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment.

Neither of these statutes is the least bit ambiguous—both allow for attaching the blocked assets of a terrorist instrumentality.6 The Court therefore agrees with the Second Circuit’s holding in Weinstein that the statutes’ plain language defeats Bank Melli’s argument. 609 F.3d at 49 (“If this did not constitute an independent grant of jurisdiction over the agencies and instrumentalities, the parenthetical would be a nullity.”). 4 Emphasis added. 5 Emphasis added. 6 Bank Melli makes various arguments for a strained interpretation of this language in which instrumentalities’ assets are not subject to attachment, including relying on cases decided before these statutes were enacted; the Court rejects such arguments as unpersuasive.

87a Incidentally, the Second Circuit went on to explain

that its interpretation was also supported by a floor statement by one of TRIA’s sponsors.7 Id. at 50. Bank Melli mischaracterizes Weinstein as having “based its holding on” that legislative history—not so. See Reply (dkt. 117) at 6; Weinstein, 609 F.3d at 50 (“even if, con-trary to fact, there were an ambiguity here, it would be resolved in plaintiff ’ s favor by the legislative history”). Bank Melli then makes much of the fact that Senator Harkin’s words “were never uttered on the Senate floor” but were added to the congressional record after the vote. See Reply at 6-7. As Plaintiffs note, “Senators can, and routinely do, revise and extend their on-floor re-marks for inclusion in the Congressional Record.” Pls.’ Opp’n to MTD (dkt. 115) at 9 n.7. Regardless of the weight to which the floor statement is entitled, however, the plain language of the statutes is unambiguous and dispositive. The Court therefore rejects this argument for dismissal.

B. Retroactivity Bank Melli next argues that, even if the statutes mean

what the Court understands them to mean, they cannot be applied to this case without rendering them impermis-sibly retroactive. MTD at 15-17. A statute “is retroac-tive if it alters the legal consequences of acts completed before its effective date.” Chang v. United States, 327 F.3d 911, 920 (9th Cir. 2003) (citing Miller v. Florida, 482 U.S. 423, 430 (1987)). To determine whether a statute is

7 That statement included the language: “for purposes of enforcing a judgment against a terrorist state, title II does not recognize any ju-ridical distinction between a terrorist state and its agencies or in-strumentalities.” 148 Cong. Rec. S11524-01 (daily ed. Nov. 19, 2002) (statement of Sen. Harkin).

88a retroactive, courts apply the two-part test set out in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).

“First, courts must ‘determine whether Congress has expressly prescribed the statute’s proper reach,’ ” in which case the language used by Congress controls. See Ctr. For Biological Diversity v. U.S. Dep’t of Agric., 626 F.3d 1113, 1117 (9th Cir. 2010) (quoting Landgraf, 511 U.S. at 280). The Court rejects Plaintiffs’ argument that TRIA’s plain language expresses Congress’ intent that it apply retroactively. See Pls. Br. at 4. Plaintiffs note that Section 201 of TRIA states that it applies “in every case” in which a person “has obtained a judgment” against a terrorist party . . . and renders the terrorist party’s blocked assets subject to execution to the extent of any compensatory damages for which the terrorist party “has been adjudged liable.” Id. While that language might support Plaintiffs’ interpretation, it falls quite short of an “ ‘unambiguous directive’ or ‘express command’ that the statute . . . be applied retroactively.” See Ctr. for Biolog-ical Diversity, 626 F.3d at 1118 (quoting Martin v. Hadix, 527 U.S. 343, 354 (1999)).

Second, under Landgraf, “absent such express lan-guage, courts must ‘determine whether the new statute would have retroactive effect, i.e., whether it would im-pair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’ ” Id. at 1117 (quoting Landgraf, 511 U.S. at 280). If a statute would operate retroactively at step two, it does not apply. Id. Bank Melli states, and Plaintiffs do not dispute, that at the time of the conduct underlying Plaintiffs’ judg-ments, Bank Melli’s assets could not have been seized to satisfy Iranian government debts. MTD at 15. Accord-ingly, Bank Melli contends, seizing Bank Melli’s assets

89a now to satisfy a judgment based on “conduct that oc-curred before Congress enacted [the laws] would clearly ‘increase [Bank Melli’s] liability for past conduct.’ ” Id. at 16. Although this argument holds some initial appeal, the Court finds that it falters under close scrutiny, for two al-ternative reasons.

1. Bank Melli’s Conduct Post-TRIA Bank Melli’s argument depends upon a simplified nar-

rative in which the only significant events, for example, in the case of the Bennett Plaintiffs, are: (1) the bombing at Hebrew University, in July 2002; (2) TRIA’s enactment, in November 2002; and (3) the Bennett Plaintiffs’ default judgment against Iran, in August 2007. Such a narrative enables Bank Melli to argue that, as a statute’s retroac-tivity turns on “when the primary conduct at issue in the suit took place,” the primary conduct at issue here is the bombing. See MTD at 16 (citing Scott v. Boos, 215 F.3d 940, 949 (9th Cir. 2000)). But Bank Melli’s narrative omits an additional event of great significance: the freez-ing of Bank Melli’s assets in October 2007 in light of OFAC’s findings that, from 2002 to 2006, “Bank Melli . . . provided a range of financial services on behalf of Iran’s nuclear and missile industries.” See 10/25/07 Fact Sheet. Plaintiffs therefore argue that, because “the illicit con-duct underlying the blocking of Bank Melli’s property and subjecting such property to execution in satisfaction of judgments against Iran[ ] occurred years after TRIA’s enactment,” Bank Melli should have understood that “its nefarious conduct could and would result in its U.S. prop-erty being blocked and executed against pursuant to TRIA.” Pls.’ Opp’n to MTD at 16.

Bank Melli responds that “later secondary conduct— even if wrongful—does not eliminate a statute’s retro-active effect.” Bank Melli Br. at 2. In support of this as-

90a sertion, Bank Melli relies on three cases, Johnson v. United States, 529 U.S. 694 (2000), Vartelas v. Holder, 132 S. Ct. 1479 (2012), and Tyson v. Holder, 670 F.3d 1015 (9th Cir. 2012). See Reply at 11; Bank Melli Br. at 2-3. None apply here.

In Johnson, 529 U.S. at 697-698, Congress had enact-ed a statute authorizing a court to impose an additional term of supervised release if a defendant violated condi-tions of his initial release; the defendant had been con-victed before Congress enacted the statute, but he violat-ed the conditions of his release after Congress enacted the statute. Johnson appealed his sentence, arguing that applying the new statute to him violated the Ex Post Fac-to Clause. Id. at 698. The Sixth Circuit found that the application of the statute was not retroactive, because it punished Johnson’s violations of the conditions of super-vised release, which occurred after the statute was amended. Id. at 698-699. The Supreme Court disagreed, concluding that the “postrevocation penalties relate to the original offense,” and that “to sentence Johnson to a further term of supervised release under [the statute] would be to apply this section retroactively.” Id. at 701.

Importantly, the Court’s conclusion in Johnson was driven by “the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of su-pervised release.” Id. at 700. The Court noted that con-duct violating supervised release need not be criminal and need only be found by a judge under a preponder-ance of the evidence standard; in addition, where the conduct is criminal, it could form the basis for a separate prosecution, which would trigger double jeopardy con-cerns. Id. It is for those reasons that the Court “attrib-ute[d] postrevocation penalties to the original convic-

91a tion.” Id. at 701. None of those reasons are present here: proof beyond a reasonable doubt, double jeopardy, and the myriad of weighty constitutional issues that sur-round criminal sentencing have no bearing on this civil matter.

Vartelas and Tyson, though not criminal cases, are similarly inapposite.8

In Vartelas, 132 S. Ct. at 1485, a legal permanent resi-dent had pled guilty to conspiracy to make or possess counterfeit securities in 1994, for which he received a short sentence. He traveled regularly thereafter to visit his aging parents in Greece, but in 2003, he was stopped upon his return and an immigration officer classified him as an alien seeking admission under the Illegal Immigra-tion Reform and Immigrant Responsibility Act (IIRI-RA), a statute enacted in 1996. Id. at 1483, 1485. The Second Circuit rejected Vartelas’s argument that IIRI-RA operated prospectively. Id. at 1486. The Supreme Court disagreed, holding that neither Vartelas’s sentence nor the immigration law in effect in 1994 prevented Var-telas from visiting his parents in Greece, and so applying IIRIRA to him attached “ ‘a new disability’ to conduct over and done well before the provision’s enactment.” Id. at 1487. As in Johnson, the Court’s conclusion was based on the principle that it was unfair to attach additional penalties to the original crime. Rejecting the govern-ment’s argument that “the relevant event” was Vartelas’s

8 The case law has long recognized a relationship between criminal and immigration cases. See Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That depor-tation is a penalty—at times a most serious one—cannot be doubt-ed.”).

92a “post-IIRIRA act of returning to the United States,” id. at 1488, the Court held that Vartelas’s “past misconduct . . . not present travel, is the wrongful activity Congress targeted,” id. at 1489.

In so holding, the Court drew a sharp distinction be-tween cases in which the subsequent act was illegal and/or dangerous, and those in which the subsequent act was “innocent.” See id. at 1489-1490. Thus it distin-guished Racketeer Influenced and Corrupt Organiza-tions Act (RICO) prosecutions that encompassed pre-enactment conduct, because “those prosecutions depend-ed on criminal activity . . . occurring after the provision’s effective date,” as opposed to IIRIRA, which does not. Id. at 1489. And it distinguished Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), in which the Court held that an IIRIRA provision, providing that an alien who re-enters the country after having been removed can be re-moved again under the same removal order, could be ap-plied to an alien who returned illegally before IIRIRA’s enactment. Id. The Court explained that it was an “ ‘al-ien’s choice to continue his illegal presence . . . after the effective date of the new la[w],’ ” and “ ‘not a past act that he is helpless to undo’ ” that subjected him to the new law. Id. (quoting Fernandez-Vargas, 548 U.S. at 44). The Court contrasted the alien in Fernandez-Vargas with Vartelas, whom it “several times stressed, engaged in no criminal activity after IIRIRA’s passage.” Id. (emphasis added). The Court likewise distinguished cases dealing with laws that prevent felons from pos-sessing firearms, laws that prevent persons convicted of sex crimes against minors from working in jobs involving contact with minors, and laws that prevent a person who has been adjudicated as mentally defective from pos-sessing guns; those laws “target a present danger,” while

93a “[t]he act of flying to Greece” did not make Vartelas “hazardous.” Id.; id. at n.7. Deeming Vartelas’s travel and return “innocent” acts that “involved no criminal in-fraction,” the Court concluded that applying IIRIRA to bar Vartelas from traveling abroad “rested not on any continuing criminal activity, but on a single crime com-mitted years before IIRIRA’s enactment.” Id. at 1490. Bank Melli cannot argue that its assistance in Iran’s nu-clear proliferation efforts is either an “innocent act,” akin to visiting one’s elderly parents in Greece, or something Bank Melli was “helpless to undo.” The Court’s concerns in Vartelas are absent here.

Moreover, Tyson is analogous to Vartelas. In Tyson, 670 F.3d at 1017, a lawful permanent resident was con-victed in 1980 of importing heroin, following her consent to a bench trial with stipulated facts and testimony. Twenty-four years later, she left the United States and was denied re-entry. Id. She sought a waiver of in-admissibility under former § 212(c), which had been re-pealed in 1996. Id. In so doing, she relied on INS v. St. Cyr., 533 U.S. 289 (2001), in which the Supreme Court had held that § 212(c) relief remained available to aliens who entered plea bargains with the expectation that they would remain eligible for a waiver. Id. The Ninth Circuit concluded that Tyson was entitled to invoke St. Cyr. Id. at 1020. The court explained that applying the repeal of § 212(c) to Tyson would impose “an impermissible retro-active effect on aliens . . . who in reliance on the possibil-ity of discretionary relief, agreed to a stipulated facts tri-al.” Id. at 1022.

Tyson turned on a lawful permanent resident’s settled expectations about the impact of a criminal conviction. See id. at 1021-1022. In light of St. Cyr., it is no surprise that the court found it unfair to prevent Tyson from ap-

94a plying for a § 212(c) waiver. And, consistent with Var-telas, it is no surprise that the court would not wish to add to the consequences of Tyson’s original conviction by denying her re-entry based only on the innocuous act of travel. See id. at 1021 (identifying the only two conse-quences of Tyson’s stipulated facts trial in 1980).

All three of Bank Melli’s cases therefore involve, and reject, attempts to attach extra penalties to an individu-al’s original criminal conviction based on subsequent in-nocuous or non-criminal behavior. That is not this case. This case involves, instead: (1) terrorist act(s) by the gov-ernment of Iran; (2) the enactment of TRIA, which did not make Bank Melli’s assets subject to attachment for Iranian debts, but should have put Bank Melli on notice of that possibility; and (3) default judgment(s) against Iran; followed by (4) Bank Melli’s support for Iran’s nu-clear and missile industries; and (5) this government’s re-sulting decision to freeze Bank Melli’s assets. There is no original criminal conviction against Bank Melli. Bank Melli’s assets are subject to attachment in this case be-cause of Bank Melli’s own actions, post-TRIA, in support-ing Iran’s nuclear and missile industries. Those actions are not innocuous or harmless. Accordingly, the Court rejects Bank Melli’s retroactivity argument.

2. Post-Judgment Enforcement Action In the alternative, Bank Melli’s retroactivity argument

fails because Bank Melli misconstrues what TRIA does. Bank Melli argues that Plaintiffs seek to use TRIA to make it liable for something for which it was not liable pre-TRIA. MTD at 15. In both motion hearings and in its supplemental briefing, Bank Melli has maintained that liability and collectability are interchangeable concepts; that is, that collecting money from Bank Melli in connec-tion with Iran’s actions is the equivalent of holding Bank

95a Melli liable for Iran’s actions. See, e.g., Bank Melli Br. at 3-4 (citing snippets from various cases using terms like “liability for a money judgment”). The Court disagrees. This case is not about holding Bank Melli liable for Iran’s actions, it is simply about collecting money from Iran, wherever that money can be found.9

Neither TRIA nor section 1610(g) speak of shifting lia-bility from a terrorist party to its instrumentality. Both speak of attaching an instrumentality’s assets in aid of executing a judgment against a terrorist party. See sec-tion 1610(g) (stating that “the property of an . . . instru-mentality of such a state . . . is subject to attachment in aid of execution, and execution, upon that judgment”); TRIA (stating that “(. . . the blocked assets of any . . . in-strumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment”). These laws “merely provide[ ] an exception to foreign sovereign immunity from execu-tion for assets of . . . instrumentalities of foreign sover-eign terrorist parties in the post-judgment context of ex-ecution and attachment proceedings to satisfy judgments against such foreign sovereign terrorist parties ‘for which there was original jurisdiction under the FSIA.’ ” Pls.’ Opp’n to MTD at 13 (citing Bennett, et al., v. Islamic Rep. of Iran, et al., No. 11-80065, 2011 WL 3157089, at *5 (N.D. Cal. July 26, 2011)).

9 By way of analogy, it is as if, after Plaintiffs had obtained their de-fault judgments against Iran, Iran had gone out and purchased Bank Melli. Like shares in Bank Melli, the law recognizes the Blocked As-sets as assets of Iran, to which Iran’s judgment creditors are enti-tled. Cf. Pls. Br. at 3-4 (“Iran’s liability for the amounts owed under the Judgments remains the same; the scope of the assets subject to execution in satisfaction of the Judgments, however, has in-creased.”).

96a Bank Melli’s argument to the contrary presupposes

that Bancec, 462 U.S. at 626-627, which held that “gov-ernment instrumentalities established as juridical enti-ties distinct and independent from their sovereign should normally be treated as such,” stands for an immutable principle of law. But Congress created the presumption of separateness in the first place, see Bancec, 462 U.S. at 627 (in enacting FSIA, “Congress clearly expressed its intention that duly created instrumentalities of a foreign state are to be accorded a presumption of independent status”), and it had the power to revoke that presump-tion. As discussed above, Congress revoked that pre-sumption in this context through TRIA and section 1610(g). See Estate of Heiser v. Islamic Rep. of Iran, 807 F. Supp. 2d 9, 15 (D.D.C. 2011) (section 1610(g) abrogates Bancec in the context of terrorism-related judgments); Weinstein, 609 F.3d at 51 (TRIA overrides presumption of separateness in Bancec).

Thus in Weinstein, 609 F.3d at 50, where (as here) plaintiffs sought to recover assets from Bank Melli to sat-isfy a judgment against Iran, the Second Circuit rejected Bank Melli’s argument10 that the court should “read the TRIA as applying, prospectively, only to judgments ren-dered final after the TRIA’s enactment, and thus not to” judgments pre-dating TRIA. The Second Circuit ex-plained that “[t]he effect of the TRIA . . . was simply to render a judgment more readily enforceable against a re-lated third party. The judgment itself was in no way

10 As counsel for Bank Melli candidly conceded at the motion hear-ing, Bank Melli did not make a retroactivity argument in Weinstein, and so the Second Circuit did not squarely address that issue. None-theless, Bank Melli argued there that TRIA violated the separation of powers doctrine, and, in connection with that argument, that TRIA should only be applied prospectively. Id.

97a tampered with.” Id. at 51. Here, too, the Court is not al-tering the judgment against Iran in order to hold Bank Melli liable; it is allowing Iran’s judgment creditors to re-cover from Iran’s instrumentality because that instru-mentality is no longer presumed to be separate from Iran.11 The Court therefore also rejects Bank Melli’s ret-roactivity argument because TRIA relates to collectabil-ity, not liability.

C. “Assets of ” Bank Melli Bank Melli also urges dismissal because, it argues, it

does not actually own the Blocked Assets. See MTD at 18-20. For TRIA or section 1610(g) to apply, the funds at issue must be “assets of ” or “property of ” Bank Melli. See TRIA; section 1610(g)(1); Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F. Supp. 2d 389, 400 (S.D.N.Y. 2011) (“For the accounts at respondent banks to be attachable, then, North Korea or one of its agencies or instrumentalities must actually own it.”). In the Com-plaint, however, Plaintiffs allege only that the Blocked Assets are “due and owing by contract to Bank Melli,” not that Bank Melli “owns” them. See Compl. ¶ 16.

No matter. As Plaintiffs note in their briefing, Feder-al Rule of Civil Procedure 69 provides that enforcement proceedings in federal courts are governed by the law of 11 That this case is not about Bank Melli’s liability is further support-ed by the case law on joinder (discussed below). Where plaintiffs have secured default judgments against Iran, its instrumentalities need not even be served with post-judgment motions, which suggests that collecting assets from those instrumentalities is not about the instrumentalities’ liability. See Peterson v. Islamic Rep. of Iran, 627 F.3d 1117, 1130 (9th Cir. 2010) (“[s]ervice of post-judgment motions is not required”); Estate of Heiser, 807 F. Supp. 2d at 23 (“Congress did not [intend] to require service of garnishment writs on agencies or instrumentalities of foreign states responsible for acts of state-sponsored terrorism”).

98a the state in which the Court sits, although a federal stat-ute governs if applicable. Pls.’ Opp’n to MTD at 19; Fed. R. Civ. P. 69(a)(1). The Ninth Circuit explained in Peter-son, 627 F.3d at 1130, that “[t]he FSIA does not provide methods for the enforcement of judgments against for-eign states, only that those judgments may not be en-forced by resort to immune property . . . . Therefore, California law on the enforcement of judgments applies to this suit insofar as it does not conflict with the FSIA.”12

California law treats the Blocked Assets as subject to execution. In California, all property of a judgment debt-or, regardless of the type of interest, is subject to en-forcement of a money judgment. See Cal. Civ. Proc. Code §§ 680.310 (“ ‘Property’ includes real and personal

12 Neither party has argued that federal law conflicts with state law in this case, or preempts it, as some courts have concluded. See, e.g., Hausler v. JPMorgan Chase Bank, 845 F. Supp. 2d 553, 563 (S.D.N.Y. 2012) (“the use of state property law to dictate the range of assets that are executable under the TRIA would generate absurd results”); cf. Calderon-Cardona, 867 F. Supp. 2d at 399-405 (applying state law “because [TRIA] provides no guidance for determining which blocked assets are ‘of that terrorist party,’ ” but discussing federal law “for the sake of argument”). Bank Melli’s argument on this subject is based, instead, on language from a variety of cases, and from a couple of amicus briefs, supporting the uncontroversial point that having an interest in property is not necessarily the same thing as owning property. See MTD at 19-20. Nonetheless, the Court is aware of no federal law that would alter its conclusion. Cer-tainly, Bank Melli does not cite to any authority, federal or other-wise, holding that a party’s 100% beneficial interest in an asset, or a vested right to receive a sum certain that has been reduced to cash, does not constitute an “asset of ” that party. Moreover, the cases dealing with entitlement to mid-stream electronic fund transfers are distinguishable on their facts. See, e.g., Estate of Heiser v. Islamic Rep. of Iran, No. 00-2329, 01-2104, 2012 WL 3776705, at *16 (D.D.C. Aug. 31, 2012) (describing “Iran’s indefinite, ephemeral interest” in blocked EFTs).

99a property and any interest therein.”), 695.010(a) (“Except as otherwise provided by law, all property of the judg-ment debtor is subject to enforcement of a money judg-ment.”), 699.710 (all property subject to enforcement of money judgment also subject to levy). This includes property of a judgment debtor that is held by a third par-ty. See id. at § 708.210 (“If a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor, the judgment creditor may bring an action against the third person”). Thus, in Peterson, 627 F.3d at 1130-1131 (quot-ing Cal. Civ. Proc. Code § 708.510(a)), the court noted that “California enforcement law authorizes a court to ‘order the judgment debtor to assign to the judgment creditor . . . all or part of a right to payment due or to be-come due, whether or not the right is conditioned on fu-ture developments.’ ”

Here, there is no dispute that Bank Melli has a 100% beneficial interest in the Blocked Assets, and that the Blocked Assets are already “due and owing” to Bank Melli from Visa. See Compl. ¶ 16. Those funds—in an amount certain—have been deposited into the Court’s registry. See dkts. 88-89. Visa has disclaimed any ben-eficial ownership interest in the Blocked Assets, explain-ing that it only continued to hold them because the assets were blocked. See Compl. ¶ 18; Pls.’ Opp’n to MTD at 21 (“[B]ut for the fact that such funds are blocked, Bank Melli would be entitled to payment of those funds to-day.”). Under such circumstances, the Court concludes that the Blocked Assets are “assets of ” or “property of ” Bank Melli. The Court therefore rejects this argument for dismissal.

100a

D. Rule 1913 Finally, Bank Melli argues that it is a required party

that cannot be joined due to its sovereign immunity. MTD at 20-22. Bank Melli’s argument relies almost en-tirely on Republic of Philippines v. Pimentel, 553 U.S.

13 Rule 19 provides, in part: (a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of pro-cess and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if :

(A) in that person’s absence, the court cannot accord com-plete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obli-gations because of the interest . . . .

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine wheth-er, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person’s ab-sence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoid-ed by:

(A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures;

(3) whether a judgment rendered in the person’s absence could be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed. R. Civ. P. 19(a)-(b).

101a 851 (2008). Pimentel, 553 U.S. at 854-858, involved an in-terpleader action in which human rights victims who had obtained a judgment against Ferdinand Marcos sought to attach property held by a bank. Two of the entities in the suit, the Republic of the Philippines and the Philippine Presidential Commission on Good Governance (“the Commission”), invoked sovereign immunity, and were dismissed; however, the district court allowed the action to proceed. Id. The Ninth Circuit held that dismissal of the interpleader suit was not necessary because, al-though the Philippines and the Commission were “neces-sary parties” under Rule 19, their claim had so little mer-it that the interpleader action could proceed without them. Id. at 860. The Supreme Court reversed, explain-ing that the Court of Appeals had not given the necessary weight to the absent entities’ assertion of sovereign im-munity: “where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for in-jury to the interests of the absent sovereign.” Id. at 864-867. Bank Melli argues that, as in Pimentel, it is a for-eign sovereign not amenable to suit, and so the Court must dismiss. See MTD at 21-22.

Bank Melli assumes that it is a required party. It is not. Bank Melli is a mere instrumentality of Iran, and as such its presence is not central to this case. That conclu-sion is supported by Estate of Heiser, 807 F. Supp. 2d at 12, in which victims of state-sponsored terrorism sought to direct Sprint to turn over funds owed to the Telecom-munication Infrastructure Company of Iran (“TIC”), an instrumentality of Iran. Sprint argued that it should be permitted to interplead TIC into the proceeding. Id. at 23. The court explained that “Congress did not [intend] to require service of garnishment writs on agencies or in-

102a strumentalities of foreign states responsible for acts of state-sponsored terrorism” and that, accordingly, “TIC [was] not a necessary party to [the] action under appli-cable law.” 14 Id; cf. Peterson, 627 F.3d at 1130 (under FSIA, plaintiff need not serve post-judgment motions on foreign state). Here, the Blocked Assets are owed to an instrumentality of judgment debtor Iran; such property is therefore stripped of immunity and subject to execu-tion as a matter of law. See TRIA; section 1610(g). Bank Melli has failed to demonstrate either that “in [its] ab-sence, the court cannot accord complete relief among ex-isting parties” or that “disposing of the action in [its] ab-sence may (i) . . . impair or impede [its] ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or other-wise inconsistent obligations.” See Fed. R. Civ. P. 19(a).

This case is therefore distinguishable from Pimentel, where there was no dispute that the Philippines and the Commission were required parties. See 553 U.S. at 863 (“[t]he application of subdivision (a) of Rule 19 is not con-tested”). The dispute in Pimentel centered on Rule 19(b), “whether the action may proceed without the Re-public and the Commission, given that the Rule requires them to be parties.” Id. at 864. Because this Court finds that Bank Melli is not a required party, it need not reach Rule 19(b), and the question of whether Bank Melli can be joined. The Court notes, however, that, unlike in Pi-mentel, 553 U.S. at 865, where “[i]mmunity . . . [was] un-contested,” here there are two applicable statutory ex-ceptions to immunity, which alleviate any concerns about

14 The court added that Sprint had also not established a risk of be-ing subjected to double liability over the funds, but that was not the basis for its conclusion that TIC was not a necessary party. See id. at 23-24.

103a prejudice to Bank Melli or about the adequacy of a judg-ment rendered in Bank Melli’s absence. See TRIA; sec-tion 1610(g); see also Weinstein, 609 F.3d at 50 (“[W]e find it clear beyond cavil that Section 201(a) of the TRIA provides courts with subject matter jurisdiction over post-judgment execution and attachment proceedings against property held in the hands of an instrumentality of the judgment-debtor, even if the instrumentality is not itself named in the judgment.”). Bank Melli’s response, that the exceptions to immunity pertain to the property, and not to Bank Melli, see Bank Melli Br. at 7, only re-inforces the Court’s conclusion that the statutory scheme is not about Bank Melli’s liability, but about Plaintiffs’ ability to collect from Iran. This case could proceed without Bank Melli.

Because Bank Melli is not a required party that can-not be joined under Rule 19, the Court rejects this argu-ment for dismissal as well.

III. CONCLUSION For the foregoing reasons, the Court DENIES Bank

Melli’s Motion to Dismiss. The Court further finds that the standards of 28 U.S.C. § 1292(b) have been met,15 and CERTIFIES this Order for interlocutory appeal.

15 Specifically, the Court finds that the issues raised by Bank Melli in favor of dismissal are controlling issues of law, and could “materially affect the outcome of the litigation in the district court.” In re Ce-ment Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). If Bank Melli is correct that Bancec applies, or that the statutes are imper-missibly retroactive, or that Plaintiffs have not adequately alleged that the assets are Bank Melli’s property, or that it is a required par-ty that cannot be joined, Bank Melli is entitled to dismissal. More-over, in light of the paucity of authority on these issues, particularly as to TRIA, there is substantial ground for difference of opinion. See 28 U.S.C. § 1292(b); Levine v. United Healthcare Corp., 285 F. Supp. 2d 552, 560 (N.J. 2003) (“[T]he issue on this motion is whether there

104a IT IS SO ORDERED.

Dated: February 28, 2013

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

is substantial ground for debate on this issue and this Court finds that the question involved here is admittedly complicated and suffi-ciently close that reasonable minds could disagree with this Court’s conclusion.”). Finally, “an immediate appeal from the order may ma-terially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), as it “would conserve judicial resources and spare the par-ties from possibly needless expense if it should turn out that this Court’s rulings are reversed,” APCC Servs. v. Sprint, 297 F. Supp. 2d 90, 1000 (D.D.C. 2003).

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APPENDIX E

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———— DOCKET NOS. 13-15442, 13-16100

———— MICHAEL BENNETT; LINDA BENNETT,

AS CO-ADMINISTRATORS OF THE ESTATE OF MARIA ANN BENNETT,

Plaintiffs-Appellees,

v.

THE ISLAMIC REPUBLIC OF IRAN,

Defendant,

v.

VISA INC.; FRANKLIN RESOURCES, INC.,

Defendants-third-party-plaintiffs–Appellees,

v.

GREENBERG AND ACOSTA JUDGMENT CREDITORS,

Plaintiff-third-party-defendant–Appellee,

HEISER JUDGMENT CREDITORS,

Plaintiff-fourth-party-defendant–Appellee,

v.

BANK MELLI,

Plaintiff-third-party-defendant–Appellant.

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ORDER

————

July 5, 2016

————

Appeals from the United States District Court for the Northern District of California, San Francisco

————

Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and BENSON,* Senior District Judge.

————

Bank Melli’s motion to stay the mandate pending the filing of a petition for a writ of certiorari is GRANTED. Fed. R. App. P. 41(d)(2). The mandate is ordered stayed for ninety days from the filing date of this order pending the filing of a petition for writ of certiorari in the United States Supreme Court. In the event that the petition for writ of certiorari is timely filed, the stay shall continue until final disposition by the Supreme Court.

* The Honorable Dee V. Benson, Senior United States District Judge for the District of Utah, sitting by designation.

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APPENDIX F

RELEVANT STATUTORY PROVISIONS

1. The Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891, as amended and codi-fied at 28 U.S.C. §§ 1602 et seq., provides:

§ 1602. Findings and declaration of purpose

The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the in-terests of justice and would protect the rights of both foreign states and litigants in United States courts. Un-der international law, states are not immune from the ju-risdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments ren-dered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.

§ 1603. Definitions

For purposes of this chapter—

(a) A “foreign state”, except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

(b) An “agency or instrumentality of a foreign state” means any entity—

(1) which is a separate legal person, corporate or otherwise, and

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(2) which is an organ of a foreign state or politi-cal subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.

(c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdic-tion of the United States.

(d) A “commercial activity” means either a regular course of commercial conduct or a particular commer-cial transaction or act. The commercial character of an activity shall be determined by reference to the na-ture of the course of conduct or particular transaction or act, rather than by reference to its purpose.

(e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by such state and having substantial contact with the United States.

§ 1604. Immunity of a foreign state from jurisdiction

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the juris-diction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

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§ 1605. General exceptions to the jurisdictional im-munity of a foreign state

(a) A foreign state shall not be immune from the ju-risdiction of courts of the United States or of the States in any case—

(1) in which the foreign state has waived its immun-ity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;

(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or in-strumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States;

(4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue;

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a

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foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that for-eign state or of any official or employee of that foreign state while acting within the scope of his office or em-ployment; except this paragraph shall not apply to—

(A) any claim based upon the exercise or per-formance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecu-tion, abuse of process, libel, slander, misrepresenta-tion, deceit, or interference with contract rights; or

(6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined le-gal relationship, whether contractual or not, concern-ing a subject matter capable of settlement by arbitra-tion under the laws of the United States, or to confirm an award made pursuant to such an agreement to ar-bitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agree-ment to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise appli-cable.

(7) Repealed.

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(b) A foreign state shall not be immune from the ju-risdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That—

(1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process ob-tained on behalf of the party bringing the suit, the ser-vice of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and

(2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initi-ated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state’s interest.

(c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may in-

112a

clude costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and mari-time jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as pro-vided in this section.

(d) A foreign state shall not be immune from the ju-risdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in section 31301 of title 46. Such action shall be brought, heard, and determined in accordance with the provisions of chapter 313 of title 46 and in accordance with the prin-ciples of law and rules of practice of suits in rem, when-ever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained.

(e), (f ) Repealed.

(g) LIMITATION ON DISCOVERY.—

(1) IN GENERAL.—(A) Subject to paragraph (2), if an action is filed that would otherwise be barred by section 1604, but for section 1605A, the court, upon re-quest of the Attorney General, shall stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as

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the Attorney General advises the court that such re-quest, demand, or order will no longer so interfere.

(B) A stay under this paragraph shall be in effect during the 12-month period beginning on the date on which the court issues the order to stay discovery. The court shall renew the order to stay discovery for additional 12-month periods upon motion by the Unit-ed States if the Attorney General certifies that discov-ery would significantly interfere with a criminal inves-tigation or prosecution, or a national security opera-tion, related to the incident that gave rise to the cause of action.

(2) SUNSET.—(A) Subject to subparagraph (B), no stay shall be granted or continued in effect under par-agraph (1) after the date that is 10 years after the date on which the incident that gave rise to the cause of ac-tion occurred.

(B) After the period referred to in subparagraph (A), the court, upon request of the Attorney General, may stay any request, demand, or order for discovery on the United States that the court finds a substantial likelihood would—

(i) create a serious threat of death or serious bodily injury to any person;

(ii) adversely affect the ability of the United States to work in cooperation with foreign and in-ternational law enforcement agencies in investigat-ing violations of United States law; or

(iii) obstruct the criminal case related to the in-cident that gave rise to the cause of action or un-dermine the potential for a conviction in such case.

(3) EVALUATION OF EVIDENCE.—The court’s eval-uation of any request for a stay under this subsection

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filed by the Attorney General shall be conducted ex parte and in camera.

(4) BAR ON MOTIONS TO DISMISS.—A stay of discov-ery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.

(5) CONSTRUCTION.—Nothing in this subsection shall prevent the United States from seeking protec-tive orders or asserting privileges ordinarily available to the United States.

§ 1605A. Terrorism exception to the jurisdictional im-munity of a foreign state

(a) IN GENERAL.—

(1) NO IMMUNITY.—A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise cov-ered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudi-cial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or re-sources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

(2) CLAIM HEARD.—The court shall hear a claim under this section if—

(A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time the act de-scribed in paragraph (1) occurred, or was so desig-nated as a result of such act, and, subject to sub-clause (II), either remains so designated when the claim is filed under this section or was so designat-

115a

ed within the 6-month period before the claim is filed under this section; or

(II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of sec-tion 1083(c)(3) of that Act, the foreign state was designated as a state sponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appro-priations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed;

(ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred—

(I) a national of the United States;

(II) a member of the armed forces; or

(III) otherwise an employee of the Govern-ment of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment; and

(iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; or

(B) the act described in paragraph (1) is related to Case Number 1:00CV03110 (EGS) in the United States District Court for the District of Columbia.

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(b) LIMITATIONS.—An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this sec-tion) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) not later than the latter of—

(1) 10 years after April 24, 1996; or

(2) 10 years after the date on which the cause of ac-tion arose.

(c) PRIVATE RIGHT OF ACTION.—A foreign state that is or was a state sponsor of terrorism as described in sub-section (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to—

(1) a national of the United States,

(2) a member of the armed forces,

(3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment, or

(4) the legal representative of a person described in paragraph (1), (2), or (3),

for personal injury or death caused by acts described in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction un-der this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action,

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a foreign state shall be vicariously liable for the acts of its officials, employees, or agents.

(d) ADDITIONAL DAMAGES.—After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, wheth-er insured or uninsured, third party liability, and loss claims under life and property insurance policies, by rea-son of the same acts on which the action under subsection (c) is based.

(e) SPECIAL MASTERS.—

(1) IN GENERAL.—The courts of the United States may appoint special masters to hear damage claims brought under this section.

(2) TRANSFER OF FUNDS.—The Attorney General shall transfer, from funds available for the program under section 1404C of the Victims of Crime Act of 1984 (42 U.S.C. 10603c), to the Administrator of the United States district court in which any case is pend-ing which has been brought or maintained under this section such funds as may be required to cover the costs of special masters appointed under paragraph (1). Any amount paid in compensation to any such special master shall constitute an item of court costs.

(f ) APPEAL.—In an action brought under this section, appeals from orders not conclusively ending the litigation may only be taken pursuant to section 1292(b) of this title.

(g) PROPERTY DISPOSITION.—

(1) IN GENERAL.—In every action filed in a United States district court in which jurisdiction is alleged under this section, the filing of a notice of pending ac-tion pursuant to this section, to which is attached a copy of the complaint filed in the action, shall have the

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effect of establishing a lien of lis pendens upon any real property or tangible personal property that is—

(A) subject to attachment in aid of execution, or execution, under section 1610;

(B) located within that judicial district; and

(C) titled in the name of any defendant, or titled in the name of any entity controlled by any defend-ant if such notice contains a statement listing such controlled entity.

(2) NOTICE.—A notice of pending action pursuant to this section shall be filed by the clerk of the district court in the same manner as any pending action and shall be indexed by listing as defendants all named de-fendants and all entities listed as controlled by any de-fendant.

(3) ENFORCEABILITY.—Liens established by rea-son of this subsection shall be enforceable as provided in chapter 111 of this title.

(h) DEFINITIONS.—For purposes of this section—

(1) the term “aircraft sabotage” has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation;

(2) the term “hostage taking” has the meaning giv-en that term in Article 1 of the International Conven-tion Against the Taking of Hostages;

(3) the term “material support or resources” has the meaning given that term in section 2339A of title 18;

(4) the term “armed forces” has the meaning given that term in section 101 of title 10;

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(5) the term “national of the United States” has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));

(6) the term “state sponsor of terrorism” means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a government that has repeatedly provided sup-port for acts of international terrorism; and

(7) the terms “torture” and “extrajudicial killing” have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).

§ 1606. Extent of liability

As to any claim for relief with respect to which a for-eign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private in-dividual under like circumstances; but a foreign state ex-cept for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been con-strued to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensa-tory damages measured by the pecuniary injuries result-ing from such death which were incurred by the persons for whose benefit the action was brought.

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§ 1607. Counterclaims

In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded im-munity with respect to any counterclaim—

(a) for which a foreign state would not be entitled to immunity under section 1605 or 1605A of this chap-ter had such claim been brought in a separate action against the foreign state; or

(b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or

(c) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state.

§ 1608. Service; time to answer; default

(a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:

(1) by delivery of a copy of the summons and com-plaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and com-plaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to

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the head of the ministry of foreign affairs of the for-eign state concerned, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the for-eign state, by any form of mail requiring a signed re-ceipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, Dis-trict of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

As used in this subsection, a “notice of suit” shall mean a notice addressed to a foreign state and in a form pre-scribed by the Secretary of State by regulation.

(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumental-ity of a foreign state:

(1) by delivery of a copy of the summons and com-plaint in accordance with any special arrangement for service between the plaintiff and the agency or in-strumentality; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an of-ficer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accord-ance with an applicable international convention on service of judicial documents; or

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(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual no-tice, by delivery of a copy of the summons and com-plaint, together with a translation of each into the offi-cial language of the foreign state—

(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or

(B) by any form of mail requiring a signed re-ceipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or

(C) as directed by order of the court consistent with the law of the place where service is to be made.

(c) Service shall be deemed to have been made—

(1) in the case of service under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic note; and

(2) in any other case under this section, as of the date of receipt indicated in the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.

(d) In any action brought in a court of the United States or of a State, a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state shall serve an answer or other responsive pleading to the complaint within sixty days after service has been made under this section.

(e) No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or in-strumentality of a foreign state, unless the claimant es-

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tablishes his claim or right to relief by evidence satisfac-tory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section.

§ 1609. Immunity from attachment and execution of property of a foreign state

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execu-tion except as provided in sections 1610 and 1611 of this chapter.

§ 1610. Exceptions to the immunity from attachment or execution

(a) The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if—

(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any with-drawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiv-er, or

(2) the property is or was used for the commercial activity upon which the claim is based, or

(3) the execution relates to a judgment establishing rights in property which has been taken in violation of international law or which has been exchanged for property taken in violation of international law, or

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(4) the execution relates to a judgment establishing rights in property—

(A) which is acquired by succession or gift, or

(B) which is immovable and situated in the Unit-ed States: Provided, That such property is not used for purposes of maintaining a diplomatic or consu-lar mission or the residence of the Chief of such mission, or

(5) the property consists of any contractual obliga-tion or any proceeds from such a contractual obliga-tion to indemnify or hold harmless the foreign state or its employees under a policy of automobile or other lia-bility or casualty insurance covering the claim which merged into the judgment, or

(6) the judgment is based on an order confirming an arbitral award rendered against the foreign state, provided that attachment in aid of execution, or execu-tion, would not be inconsistent with any provision in the arbitral agreement, or

(7) the judgment relates to a claim for which the foreign state is not immune under section 1605A or section 1605(a)(7) (as such section was in effect on January 27, 2008), regardless of whether the property is or was involved with the act upon which the claim is based.

(b) In addition to subsection (a), any property in the United States of an agency or instrumentality of a for-eign state engaged in commercial activity in the United States shall not be immune from attachment in aid of ex-ecution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if—

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(1) the agency or instrumentality has waived its immunity from attachment in aid of execution or from execution either explicitly or implicitly, notwithstand-ing any withdrawal of the waiver the agency or in-strumentality may purport to effect except in accord-ance with the terms of the waiver, or

(2) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605(a) (2), (3), or (5) or 1605(b) of this chapter, regardless of whether the property is or was involved in the act upon which the claim is based, or

(3) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605A of this chapter or section 1605(a)(7) of this chapter (as such section was in effect on January 27, 2008), regardless of whether the property is or was involved in the act upon which the claim is based. (c) No attachment or execution referred to in subsec-

tions (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution af-ter having determined that a reasonable period of time has elapsed following the entry of judgment and the giv-ing of any notice required under section 1608(e) of this chapter.

(d) The property of a foreign state, as defined in sec-tion 1603(a) of this chapter, used for a commercial acti-vity in the United States, shall not be immune from at-tachment prior to the entry of judgment in any action brought in a court of the United States or of a State, or prior to the elapse of the period of time provided in sub-section (c) of this section, if—

(1) the foreign state has explicitly waived its im-munity from attachment prior to judgment, notwith-

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standing any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and

(2) the purpose of the attachment is to secure satis-faction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.

(e) The vessels of a foreign state shall not be immune from arrest in rem, interlocutory sale, and execution in actions brought to foreclose a preferred mortgage as provided in section 1605(d).

(f )(1)(A) Notwithstanding any other provision of law, including but not limited to section 208(f ) of the Foreign Missions Act (22 U.S.C. 4308(f )), and except as provided in subparagraph (B), any property with respect to which financial transactions are prohibited or regulated pursu-ant to section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)), section 620(a) of the Foreign Assis-tance Act of 1961 (22 U.S.C. 2370(a)), sections 202 and 203 of the International Emergency Economic Powers Act (50 U.S.C. 1701-1702), or any other proclamation, or-der, regulation, or license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (including any agency or instrumentality of such state) claiming such property is not immune under sec-tion 1605(a)(7) (as in effect before the enactment of sec-tion 1605A) or section 1605A.

(B) Subparagraph (A) shall not apply if, at the time the property is expropriated or seized by the foreign state, the property has been held in title by a natural person or, if held in trust, has been held for the benefit of a natural person or persons.

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(2)(A) At the request of any party in whose favor a judgment has been issued with respect to a claim for which the foreign state is not immune under section 1605(a)(7) (as in effect before the enactment of section 1605A) or section 1605A, the Secretary of the Treasury and the Secretary of State should make every effort to fully, promptly, and effectively assist any judgment cred-itor or any court that has issued any such judgment in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of such state.

(B) In providing such assistance, the Secretaries—

(i) may provide such information to the court under seal; and

(ii) should make every effort to provide the infor-mation in a manner sufficient to allow the court to di-rect the United States Marshall’s office to promptly and effectively execute against that property.

(3) WAIVER.—The President may waive any provision of paragraph (1) in the interest of national security.

(g) PROPERTY IN CERTAIN ACTIONS.—

(1) IN GENERAL.—Subject to paragraph (3), the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an in-terest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this sec-tion, regardless of—

(A) the level of economic control over the prop-erty by the government of the foreign state;

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(B) whether the profits of the property go to that government;

(C) the degree to which officials of that govern-ment manage the property or otherwise control its daily affairs;

(D) whether that government is the sole benefi-ciary in interest of the property; or

(E) whether establishing the property as a sepa-rate entity would entitle the foreign state to bene-fits in United States courts while avoiding its obli-gations.

(2) UNITED STATES SOVEREIGN IMMUNITY INAP-

PLICABLE.—Any property of a foreign state, or agency or instrumentality of a foreign state, to which para-graph (1) applies shall not be immune from attach-ment in aid of execution, or execution, upon a judg-ment entered under section 1605A because the prop-erty is regulated by the United States Government by reason of action taken against that foreign state under the Trading With the Enemy Act or the International Emergency Economic Powers Act.

(3) THIRD-PARTY JOINT PROPERTY HOLDERS.—Nothing in this subsection shall be construed to super-sede the authority of a court to prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment.

§ 1611. Certain types of property immune from exe-cution

(a) Notwithstanding the provisions of section 1610 of this chapter, the property of those organizations desig-nated by the President as being entitled to enjoy the

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privileges, exemptions, and immunities provided by the International Organizations Immunities Act shall not be subject to attachment or any other judicial process im-peding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the States.

(b) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be im-mune from attachment and from execution, if—

(1) the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign govern-ment, has explicitly waived its immunity from attach-ment in aid of execution, or from execution, notwith-standing any withdrawal of the waiver which the bank, authority or government may purport to effect except in accordance with the terms of the waiver; or

(2) the property is, or is intended to be, used in connection with a military activity and

(A) is of a military character, or

(B) is under the control of a military authority or defense agency.

(c) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be im-mune from attachment and from execution in an action brought under section 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 to the extent that the property is a facility or installation used by an accredited diplomatic mission for official purposes.

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2. Section 201 of the Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, 116 Stat. 2322, 2337, as amended and reproduced at 28 U.S.C. § 1610 note, pro-vides:

(a) IN GENERAL.—Notwithstanding any other provi-sion of law, and except as provided in subsection (b) [of this note], in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) (as such sec-tion was in effect on January 27, 2008) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumen-tality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.

(b) PRESIDENTIAL WAIVER.—

(1) IN GENERAL.—Subject to paragraph (2), upon determining on an asset-by-asset basis that a waiver is necessary in the national security interest, the Presi-dent may waive the requirements of subsection (a) [of this note] in connection with (and prior to the en-forcement of ) any judicial order directing attachment in aid of execution or execution against any property subject to the Vienna Convention on Diplomatic Rela-tions or the Vienna Convention on Consular Relations.

(2) EXCEPTION.—A waiver under this subsection shall not apply to—

(A) property subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations that has been used by the United States for any nondiplomatic purpose (in-

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cluding use as rental property), or the proceeds of such use; or

(B) the proceeds of any sale or transfer for value to a third party of any asset subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations.

(d) DEFINITIONS.—In this section [this note] the fol-lowing definitions shall apply:

(1) ACT OF TERRORISM.—The term “act of terror-ism” means—

(A) any act or event certified under section 102(1) [Pub. L. 107-297, Title I, § 102(1), Nov. 26, 2002, 116 Stat. 2323, which is set out in a note under 15 U.S.C.A. § 6701]; or

(B) to the extent not covered by subparagraph (A), any terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iii))).

(2) BLOCKED ASSET.—The term “blocked asset” means—

(A) any asset seized or frozen by the United States under section 5(b) of the Trading With the Enemy Act (50 U.S.C. App. 5(b)) or under sections 202 and 203 of the International Emergency Eco-nomic Powers Act (50 U.S.C. 1701; 1702); and

(B) does not include property that—

(i) is subject to a license issued by the United States Government for final payment, transfer, or disposition by or to a person subject to the jurisdiction of the United States in connection with a transaction for which the issuance of such license has been specifically required by statute

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other than the International Emergency Eco-nomic Powers Act (50 U.S.C. 1701 et seq.) or the United Nations Participation Act of 1945 (22 U.S.C. 287 et seq.); or

(ii) in the case of property subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, or that enjoys equivalent privileges and immunities under the law of the United States, is being used exclusively for diplomatic or consular purposes.

(3) CERTAIN PROPERTY.—The term “property sub-ject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations” and the term “asset subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations” mean any property or asset, re-spectively, the attachment in aid of execution or execu-tion of which would result in a violation of an obliga-tion of the United States under the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, as the case may be.

(4) TERRORIST PARTY.—The term “terrorist party” means a terrorist, a terrorist organization (as defined in section 212(a)(3)(B)(vi) of the Immigration and Na-tionality Act (8 U.S.C. 1182(a)(3)(B)(vi))), or a foreign state designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).